SCHEDULE 14C
(Rule 14c-101)
INFORMATION REQUIRED IN INFORMATION STATEMENT
SCHEDULE 14C
Information Statement Pursuant to Section 14(c) of the Securities
Exchange Act of 1934
Check the appropriate box:
[X] Preliminary information statement [ ] Confidential, for use of
Commission Only (as
permitted by Rule 14c-5(d)(2))
[ ] Definitive information statement
ADVANCED REFRACTIVE TECHNOLOGIES, INC.
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(Name of Registrant as Specified in Its Charter)
Payment of filing fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11
(1) Title of each class of securities to which transaction applies:
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(3) Per unit price of 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):
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(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
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ADVANCED REFRACTIVE TECHNOLOGIES, INC.
1062 Calle Negocio, Suite D, San Clemente, CA 92673
INFORMATION STATEMENT
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WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY
INTRODUCTION
This Information Statement is being mailed or otherwise furnished to
stockholders of Advanced Refractive Technologies, Inc., a Delaware corporation
("ART" or the "Company"), in connection with the approval, by written consent of
the holders of a majority of the Company's Common Stock, of an amendment to the
Certificate of Incorporation of the Company to increase the authorized Common
Stock of the Company to 750,000,000 shares.
This Information Statement is being first sent to stockholders on or
about July , 2005.
VOTE REQUIRED
The vote which was required to approve the amendment was the
affirmative vote of the holders of a majority of the outstanding Common Stock of
the Company
The record date for purposes of determining the number of outstanding
shares of Common Stock of the Company, and for determining stockholders entitled
to vote, was the close of business on June 1, 2005. As of the record date, the
Company had 29,856,628 shares of Common Stock outstanding. Holders of the shares
have no preemptive rights. Shareholders beneficially owning 15,251,227 shares as
of the record date executed written consents approving the amendment.
THE ACTION
On May 12, 2005, the Board of Directors approved, subject to
stockholder approval, an amendment to the Company's Certificate of Incorporation
to increase the number of Common Stock which the Company is authorized to issue
from one hundred million (100,000,000) shares to seven hundred fifty million
(750,000,000) shares. At present, the Certificate of Incorporation provides that
the total number of shares the Company has authority to issue is one hundred
million (100,000,000) shares of Common Stock and ten million (10,000,000) shares
of Preferred Stock. The authorized Preferred Stock is unaffected by the proposed
amendment.
Following approval by the Board of Directors, the proposal was approved
by the written consents of holders of a majority of the Company's outstanding
common stock.
The change will be accomplished by amending the second sentence of
ARTICLE IV of the Company's Certificate of Incorporation to read as follows:
The total number of shares of Common Stock this Corporation is
authorized to issue is 750,000,000, and each such share shall
have a par value of $.001.The total number of shares of
Preferred Stock this corporation is authorized to issue is
10,000,000, and each such share shall have a par value of
$.001.
The Amendment will become effective upon filing the Certificate of
Amendment to the Company's Certificate of Incorporation with the Delaware
Secretary of State, anticipated to be approximately twenty-one days after this
Information Statement has been distributed to the Company's stockholders.
The Board of Directors of the Company believes that the amendment is
advisable and in the best interests of the Company and its stockholders in order
allow it to honor existing equity financing commitments, to provide for
conversion of outstanding convertible securities into Common Stock or issuance
of shares of Common Stock upon exercise of outstanding options and warrants, and
to attract and obtain additional sources of capital in the future pursuant to
additional equity financing transactions.
ACTION BY WRITTEN CONSENT
Under Section 228 of the Delaware General Corporation Law, any action
which may be taken at any meeting of the stockholders may also be taken without
a meeting and without prior notice and without a vote, so long as a consent is
signed by the holders of the number of outstanding shares that would be
necessary to authorize such action at a shareholders' meeting at which all
shares entitled to vote were present and voted (here, a majority of the
outstanding shares of Common Stock of the Company).
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The table below lists the beneficial ownership of our common stock, as
of June 1, 2005, by each person known by us to be the beneficial owner of more
than 5% of our common stock, by each of our directors and officers, and by all
of our directors and officers as a group.
Name and Address of Number of Shares Percent
Beneficial Owner Beneficially Owned(1)(2) of Class
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Renaissance Capital (4) 9,642,857 24.13%
8080 N. Central Expressway
Suite 210-LB 59
Dallas, Texas 75206
Liberty View Special (5) 6,544,260 17.80%
Opportunities Fund
111 River Street, Suite 1000
Hoboken, NJ 07030
Lance Doherty 4,335,006(3) 13.92%
9342 Jeronimo Road
Irvine, CA 92618
Bushido Capital Master Fund LP (6) 3,139,549 9.50%
275 Seventh Avenue, Suite 2000
New York, NY 10022
David E. Eisenberg Trust (7) 2,950,000(3) 9.20%
520 Madison, 38th Floor
New York, NY 10022
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Corsair Capital (8) 2,892,857 8.71%
350 Madison Ave., 9th Floor
New York, New York, 10017
Bridges & Pipes LLC (9) 2,742,681 8.36%
830 #rd Avenue, 14th Floor
New York, NY 10022
Alpha Capital Aktiengesellschaft(10) 2,758,571 8.35%
Pradafant 7
Furstentums 9490
Vaduz Liechtentstein
Roaring Fork Capital Management (11) 2,507,143 7.64%
8400 E. Prentice Ave, Suite 745
Greenwood Village, Co 80111
Taika Investments, Inc.(12) 2,200,000 7.25%
Calle Los Mangos C/Alameda
Edificio Los Mangos PB
OFC 1 y 2
La Campina
Caracas 1030
Venezuela
Financial Entrepreneurs, Inc. (13) 2,133,001(3) 6.97%
300 South 4th Street
Las Vegas, Nevada 89101
Ronald Russo 2,188,456 6.86%
275 Madison Avenue, Sixth Floor
New York, NY 10016
Lewis Family Interest, LP (14) 1,350,000(3) 4.35%
520 Madison, 38th Floor
New York, NY 10022
Randal A. Bailey ** 520,501(3) 1.71%
1062 Calle Negocio, Suite D
San Clemente, CA 92673
Richard H. Keates, M.D.** 425,000(3) 1.39%
20 Sutton Place South
New York, NY 10022
Laurence Schreiber** 253,622(3) *
1062 Calle Negocio, Suite D
San Clemente, CA 92673
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Norman Schwartz** 128,562(3) *
1062 Calle Negocio, Suite D
San Clemente, CA 92673
Adam Krupp** 50,000(3) *
535 Eighth Avenue, 14th Floor
New York, NY 10018
All directors and executive
officers as a group (5 persons) 1,377,685(3) 4.43%
* Denotes less than one percent ** Denotes Member of the Board of Directors.
(1) Except as set forth, the persons named in the table have sole voting and
investment power with respect to all shares shown as beneficially owned by them.
(2) Applicable percentage of ownership is based on shares outstanding
as of June 1, 2005, together with applicable warrants, options and convertible
debt for such stockholder. Beneficial ownership is determined in accordance with
the rules of the SEC and includes voting and investment power with respect to
shares. Shares subject to options, warrants and convertible debt currently
exercisable/convertible or exercisable/convertible within 60 days after June 1,
2005 are included in the number of shares beneficially owned and are deemed
outstanding for purposes of computing the percentage ownership of the person
holding such options or warrants, but are not deemed outstanding for computing
the percentage of any other stockholder.
(3) Includes shares issuable upon exercise of currently exercisable options or
warrants or conversion of debt.
(4) Controlled by Russell Cleveland.
(5) Controlled by Ryan Hay
(6) Controlled by Louis Rabman
(7) Controlled by David E. Eisenberg
(8) Controlled by Jay Petschek
(9) Controlled by David Fuchs
(10) Controlled by Konrad Ackerman
(11) Controlled by Gene McCulley
(12) Controlled by Carlos Fernandez
(13) Controlled by Norton Cooper
(14) Controlled by Peter Lewis
REASONS FOR THE PROPOSED INCREASE IN CAPITAL
The Board of Directors approved the increase in the authorized shares
because it believes that it is in the best interests of the Company to have a
sufficient number of shares of Common Stock available for future acquisition or
financing transactions, as well as other corporate purposes. These purposes may
include, among other things, the sale of shares or securities convertible into
shares to obtain additional capital funds, the purchase of property, the use of
additional shares for various equity compensation and other employee benefit
plans of the Company or of acquired companies, the acquisition of other
companies, and other corporate purposes. The Company has no present
arrangements, agreements or understandings for the use of the additional shares
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proposed to be authorized. However, the Company is currently seeking equity
financing to provide additional funding for operations and regularly explores
potential acquisitions and business combinations that might involve the issuance
of additional equity.
The additional shares of Common Stock for which authorization is sought
would be a part of the existing class of Common Stock and, if and when issued,
would have the same rights and privileges as the currently outstanding shares of
Common Stock. Current shareholders do not have preemptive rights under the
Company's Certificate of Incorporation, and will not have such rights with
respect to these additional authorized shares of Common Stock. If the Board of
Directors elects to issue additional shares of Common Stock, such issuance could
have a dilutive effect on the earnings per share, voting power and shareholdings
of current shareholders.
The proposed amendment to increase the number of authorized shares of
Common Stock could, under certain circumstances, have an anti-takeover effect,
although this is not the intention of this proposal. For example, in the event
of a hostile attempt to take over control of the Company, it may be possible for
the Company to hinder the attempt by issuing shares of Common Stock, thereby
diluting the voting power of the other outstanding shares and increasing the
potential costs to acquire control of the Company. The amendment therefore may
have the effect of discouraging unsolicited takeover attempts, potentially
limiting the opportunity for our shareholders to dispose of their shares at a
higher price than may otherwise be available. The proposed amendment could have
the effect of permitting our current management, including the current Board of
Directors, to retain its position, and place it in a better position to resist
changes that shareholders may wish to make if they are dissatisfied with the
conduct of our business. This proposal to increase the authorized Common Stock
has been prompted by business and financial considerations, and the Board of
Directors is not aware of any attempt to take control of the Company. The Board
of Directors has not approved this amendment with the intent that it be utilized
as a type of anti-takeover device.
The Board of Directors believes that the amendment of the Certificate of
Incorporation to increase the number of authorized shares of Common Stock is in
the best interests of the Company and its shareholders.
ADDITIONAL INFORMATION
Additional information concerning Advanced Refractive Technologies,
Inc., including its annual and quarterly reports filed with the Securities and
Exchange Commission, may be accessed through the Securities and Exchange
Commission's EDGAR archives at www.sec.gov.
Dated: July , 2005
By Order of the Board of Directors
By: Laurence M. Schreiber, Secretary
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