LNSR LENSAR Inc

As filed with the Securities and Exchange Commission on March 5, 2024

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT

Under

The Securities Act of 1933

LENSAR, Inc.

(Exact name of registrant as specified in its charter)

Delaware		32-0125724
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

 

2800 Discovery Drive, Orlando, Florida	32826
(Address of Principal Executive Offices)	(Zip Code)

 

2024 Employment Inducement Incentive Award Plan

2020 Incentive Award Plan

2020 Employee Stock Purchase Plan

(Full title of the plans)

Nicholas T. Curtis

Chief Executive Officer

LENSAR, Inc.

2800 Discovery Drive,

Orlando, FL 32826

(888) 536-7271

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

B. Shayne Kennedy

Drew Capurro

Latham & Watkins LLP

650 Town Center Drive, 20th Floor

Costa Mesa, CA 92626

(714) 540-1235

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

Large accelerated filer

☐

Accelerated filer

☐

Non-accelerated filer

☒

Smaller reporting company

☒

Emerging growth company

☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

 

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EXPLANATORY NOTE

 

This Registration Statement on Form S-8 (the “Registration Statement”) is being filed with the Securities and Exchange Commission (the “Commission”) for the purpose of registering (a) 100,000 shares of common stock, par value $0.01 per share (the “Common Stock”), of LENSAR, Inc. (the “Registrant”) reserved for issuance under the Registrant’s 2024 Employment Inducement Incentive Award Plan, to be granted to certain eligible individuals as an inducement material to their entering into employment with the Registrant, and (b) an additional 679,609 shares of Common Stock issuable under the following employee benefit plans for which registration statements of the Registrant on Form S-8 (File Nos. 333-249323, 333-263276 and 333-270703) are effective: (i) the 2020 Incentive Award Plan, pursuant to the automatic annual increase provision therein, which added 566,341 shares of Common Stock, and (ii) the 2020 Employee Stock Purchase Plan, pursuant to the automatic annual increase provision therein, which added 113,268 shares of Common Stock.

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information called for in Part I of Form S-8 is not being filed with or included in this Registration Statement (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Commission.

 

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PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents, which have been filed with the Commission by the Registrant pursuant to the Securities Act of 1933, as amended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as applicable, are hereby incorporated by reference in, and shall be deemed to be a part of, this Registration Statement:

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement (except for any portions of the Registrant’s Current Reports on Form 8-K furnished pursuant to Item 2.02 and/or Item 7.01 thereof and any corresponding exhibits thereto not filed with the Commission) and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.

Any statement contained in this Registration Statement, in an amendment hereto or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed amendment to this Registration Statement or in any document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement, except as to such specific section of such statements as set forth therein.

Item 4. Description of Securities.

Not applicable.

Item 5. Interests of Named Experts and Counsel.

Not applicable.

Item 6. Indemnification of Directors and Officers.

Section 102 of the General Corporation Law of the State of Delaware permits a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The Registrant’s certificate of incorporation provides that no director of the Registrant shall be personally liable to it or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, except to the extent that the General Corporation Law of the State of Delaware prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty.

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Section 145 of the General Corporation Law of the State of Delaware provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation, or a person serving at the request of the corporation for another corporation, partnership, joint venture, trust or other enterprise in related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he was or is a party or is threatened to be made a party to any threatened, ending or completed action, suit or proceeding by reason of such position, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

The Registrant’s certificate of incorporation provides that the Registrant will indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of it) by reason of the fact that he or she is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve, at the Registrant’s request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being referred to as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom, if such Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the Registrant’s best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful. The Registrant’s certificate of incorporation provides that the Registrant will indemnify any Indemnitee who was or is a party to an action or suit by or in the right of the Registrant to procure a judgment in the Registrant’s favor by reason of the fact that the Indemnitee is or was, or has agreed to become, a director or officer, or is or was serving, or has agreed to serve, at the Registrant’s request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the Registrant’s best interests, except that no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the Registrant, unless a court determines that, despite such adjudication but in view of all of the circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by the Registrant against all expenses (including attorneys’ fees) actually and reasonably incurred in connection therewith. Expenses must be advanced to an Indemnitee under certain circumstances.

The Registrant has entered into indemnification agreements with each of the Registrant’s directors and officers. These indemnification agreements may require the Registrant, among other things, to indemnify its directors and officers for some expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred by a director or officer in any action or proceeding arising out of his or her service as one of the Registrant’s directors or officers, or any other company or enterprise to which the person provides services at the Registrant’s request.

The Registrant maintains a general liability insurance policy that covers certain liabilities of directors and officers of the Registrant’s corporation arising out of claims based on acts or omissions in their capacities as directors or officers.

Item 7. Exemption from Registration Claimed.

Not applicable.

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Item 8. Exhibits.

Exhibit									Incorporated by Reference						Filed
Number				Exhibit Description		Form		File Number			Filing Date		Exhibit			Herewith
	3.1			Amended and Restated Certificate of Incorporation of LENSAR, Inc.		8-K		001-39473			10/02/2020		3.1
	3.2			Second Amended and Restated Bylaws of LENSAR, Inc.		10-K		001-39473			03/12/2021		3.2
	3.3			Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock filed May 18, 2023		8-K		001-39473			05/18/2023		3.1
	4.1			Form of Certificate of Common Stock		10/A		001-39473			09/14/2020		4.1
	5.1			Opinion of Latham & Watkins LLP												X
	23.1			Consent of Independent Registered Public Accounting Firm (PricewaterhouseCoopers LLP)												X
	23.2			Consent of Latham & Watkins LLP (included in Exhibit 5.1)												X
	24.1			Power of Attorney (included on signature page)												X
	99.1			2020 Incentive Award Plan		S-8		001-39473			10/05/2020		10.1
	99.2			Form of Restricted Stock Award Agreement pursuant to 2020 Incentive Award Plan		S-8		001-39473			10/05/2020		10.2
	99.3			Form of Stock Option Agreement pursuant to 2020 Incentive Award Plan		10-K		001-39473			03/03/2022		10.5
	99.4			Form of Restricted Stock Unit Agreement pursuant to 2020 Incentive Award Plan		10-K		001-39473			03/03/2022		10.6
	99.5			2020 Employee Stock Purchase Plan		10/A		001-39473			09/14/2020		10.5
	99.6			2024 Employment Inducement Incentive Award Plan		8-K		001-39473			02/26/2024		10.1
	99.7			Form of Stock Option Grant Notice pursuant to 2024 Employment Inducement Incentive Award Plan		8-K		001-39473			02/26/2024		10.2
	99.8			Form of Restricted Stock Unit Grant Notice pursuant to 2024 Employment Inducement Incentive Award Plan		8-K		001-39473			02/26/2024		10.3
	107.1			Filing Fee Table												X

 

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Item 9. Undertakings.

provided, however, that Paragraphs (a)(1)(i) and (a)(1)(ii) of this section 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 reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.

 

 

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SIGNATURES

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 City of Orlando, State of Florida, on March 5, 2024.

LENSAR, INC.
By		/s/ Nicholas T. Curtis
		Nicholas T. Curtis
		Chief Executive Officer

SIGNATURES AND POWER OF ATTORNEY

We, the undersigned officers and directors of LENSAR, Inc., hereby severally constitute and appoint Nicholas T. Curtis and Thomas R. Staab, II, and each of them singly (with full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them for him and in his name, place and stead, and in any and all capacities, to sign this registration statement and any and all amendments (including post-effective amendments) to this registration statement and all documents relating thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as full to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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 held on the dates indicated.

 

 

Name		Title		Date
/s/ Nicholas T. Curtis		Chief Executive Officer and Director (principal executive officer)		March 5, 2024
Nicholas T. Curtis
/s/ Thomas R. Staab, II		Chief Financial Officer (principal financial officer)		March 5, 2024
Thomas R. Staab, II
/s/ Kendra W. Wong		Principal Accounting Officer (principal accounting officer)		March 5, 2024
Kendra W. Wong
/s/ William J. Link, Ph.D.		Chairperson of the Board of Directors		March 5, 2024
William J. Link, Ph.D.
/s/ Thomas B. Ellis		Director		March 5, 2024
Thomas B. Ellis
/s/ Todd B. Hammer		Director		March 5, 2024
Todd B. Hammer

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/s/ Richard L. Lindstrom, M.D.		Director		March 5, 2024
Richard L. Lindstrom, M.D.
/s/ Elizabeth G. O’Farrell		Director		March 5, 2024
Elizabeth G. O’Farrell
/s/ Aimee S. Weisner		Director		March 5, 2024
Aimee S. Weisner
/s/ Gary M. Winer		Director		March 5, 2024
Gary M. Winer

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March 5, 2024

 

 

LENSAR, Inc.

2800 Discovery Drive

Orlando, Florida 32826

Re: Registration Statement on Form S-8 with respect to 779,609 shares of common stock, par value $0.01 per share, of LENSAR, Inc.

To the addressees set forth above:

We have acted as special counsel to LENSAR, Inc., a Delaware corporation (the “Company”), in connection with the proposed issuance by the Company of up to 779,609 shares of common stock of the Company, par value $0.01 per share (the “Common Stock”), comprised of up to 566,341 shares of Common Stock (the “Plan Shares”) issuable under the Company’s 2020 Incentive Award Plan (the “2020 Plan”), up to 113,268 shares of Common Stock (the “ESPP Shares”) issuable under the Company’s 2020 Employee Stock Purchase Plan (the “ESPP”) and up to 100,000 shares of Common Stock (the “Inducement Shares” and, together with the Plan Shares and the ESPP Shares, the “Shares”) issuable under the Company’s 2024 Employment Inducement Incentive Award Plan (the “Inducement Plan”). The Shares are included in a registration statement on Form S-8 under the Securities Act of 1933, as amended (the “Act”), filed with the Securities and Exchange Commission (the “Commission”) on March 5, 2024 (the “Registration Statement”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or prospectuses forming a part thereof, other than as expressly stated herein with respect to the issuance of the Shares.

As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon the foregoing and upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein only as to the General Corporation Law of the State of Delaware (the “DGCL”), and we express no opinion with respect to any other laws.

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Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the recipients thereof, and have been issued by the Company for legal consideration in excess of par value in the circumstances contemplated by the 2020 Plan, the ESPP and the Inducement Plan, as applicable, and assuming in each case that the individual issuances, grants or awards under the 2020 Plan, the ESPP and the Inducement Plan, as applicable, are duly authorized by all necessary corporate action and duly issued, granted or awarded and exercised in accordance with the requirements of law and the 2020 Plan, the ESPP and the Inducement Plan (and the agreements and awards duly adopted thereunder and in accordance therewith), as applicable, the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and such Shares will be validly issued, fully paid and non-assessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL.

This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

Sincerely,

 

 

/s/ Latham & Watkins LLP

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CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of LENSAR, Inc. of our report dated March 4, 2024 relating to the financial statements, which appears in LENSAR, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2023.

/s/ PricewaterhouseCoopers LLP
Raleigh, North Carolina
March 5, 2024

 

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Exhibit 107.1

Calculation of Filing Fee Tables

Form S-8

(Form Type)

LENSAR, Inc.

(Exact Name of Registrant as Specified in its Charter)

Table 1—Newly Registered Securities

Plan	Security Type	Security Class Title	Fee Recalculation Rule	Amount to be Registered (1)				Proposed Maximum Offering Price Per Unit				Maximum Aggregate Offering Price			Fee Rate	Amount of Registration Fee
2024 Employment Inducement Incentive Award Plan	Equity	Common stock, $0.01 par value per share	Rule 457(c) and Rule 457(h)		100,000		(2)	$	4.75		(5)	$	475,000.00		$147.60 per $1,000,000	$	70.11
2020 Incentive Award Plan	Equity	Common stock, $0.01 par value per share	Rule 457(c) and Rule 457(h)		566,341		(3)	$	4.75		(5)	$	2,690,119.75		$147.60 per $1,000,000	$	397.06
2020 Employee Stock Purchase Plan	Equity	Common stock, $0.01 par value per share	Rule 457(c) and Rule 457(h)		113,268		(4)	$	4.75		(5)	$	538,023.00		$147.60 per $1,000,000	$	79.41
	Total Offering Amounts				779,609							$	3,703,142.75			$	546.58
	Total Fee Offsets (6)															$	0.00
	Net Fee Due															$	546.58

(1) In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.

(2) Consists of 100,000 shares of common stock, par value $0.01 per share (“Common Stock”), of LENSAR, Inc. (the “Registrant”) reserved for issuance under the 2024 Employment Inducement Incentive Award Plan, under which awards may be granted to certain eligible individuals as a material inducement to their employment with the Registrant.

(3) Consists of 566,341 shares of the Registrant's Common Stock that became available for issuance on January 1, 2024 under the Registrant's 2020 Incentive Award Plan by operation of an automatic annual increase provision therein.

(4) Consists of 113,268 shares of the Registrant's Common Stock that became available for issuance on January 1, 2024 under the Registrant's 2020 Employee Stock Purchase Plan by operation of an automatic annual increase provision therein.

(5) Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, and based upon the average of the high and low prices of the Registrant's Common Stock as reported on The Nasdaq Stock Market LLC on March 4, 2024.

(6) The Registrant does not have any fee offsets.

 

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