As filed with the Securities and Exchange Commission on July 1, 1998
June 3, 2002
Registration No. 333-_______
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333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
Washington, D.C. 20549
____________________
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of
UNDER
THE SECURITIES ACT OF 1933
____________________
BIOLASE TECHNOLOGY, INC.
(Exact
(Exact Name of Registrant as Specified in itsIts Charter)
Delaware 3845 | | 87-0442441
(State |
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer Incorporation or Organization) Classification Code Number) | | (I.R.S. Employer Identification Number) |
981 Calle Amanecer
San Clemente, California 92673
(949) 361-1200
(Address,
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Federico Pignatelli
Chairman of the Board
Jeffrey W. Jones
Chief Executive Officer
BioLase Technology, Inc.
981 Calle Amanecer
San Clemente, California 92673
(949) 361-1200
(Name,
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent forFor Service)
Copies
Copy to:
Ellen S. Bancroft, Esq.
Parker A. Schweich, Esq.
Brobeck, Phleger & Harrison LLP
38 Technology Drive
Irvine, California 92618
(949) 790-6300
Approximate date of Communications to:
Cathryn S. Gawne, Esq.
Foley & Lardner
One Maritime Plaza, Sixth Floor
San Francisco, California 94111-3404
(415) 434-4484
Telecopier No.: (415) 434-4507
APPROXIMATE DATE OF COMMENCEMENT
OF PROPOSED SALE TO PUBLIC: As soon as
practicablecommencement of proposed sale to the public: From time to time after the effective date of this Registration
Statement becomes effective.
registration statement.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Formform are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended,other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: [X]
box. þ If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. ¨
CALCULATION OF REGISTRATION FEE
Title Of Shares To Be Registered | | Amount To Be Registered | | Proposed Maximum Offering Price Per Share(1) | | Proposed Maximum Aggregate Offering Price(1) | | Amount Of Registration Fee |
|
|
|
|
|
|
|
|
|
| Common stock, $0.001 par value per share (including associated preferred stock purchase rights) | | 944,100 shares | | $ | 5.02 | | $ | 4,739,382 | | $ | 436.02 |
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CALCULATION OF REGISTRATION FEE
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Title| (1) | | Estimated based upon the average of each classthe high and low sales prices of Amount Proposed maximum Proposed maximum
securities to be to be offering price aggregate offering Amountthe Registrant’s common stock on May 28, 2002, as reported by the Nasdaq National Market, solely for the purpose of registered registered per unit pricecalculating the registration fee - -----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value 1,406,600 shares $3.125 (1) $4,395,625 (1) $1,296.70 (1)
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Common Stock, $.001 par value 200,000 shares $5.00 (2) $1,000,000 (2) $ 295.00 (2)
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Common Stock, $.001 par value 25,000 shares $4.00 (2) $ 100,000 (2) $ 29.50 (2)
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Common Stock, $.001 par value 724,000 shares $3.75 (2) $2,715,000 (2) $ 800.93 (2)
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Total 2,355,600 shares $8,210,625 $2,422.13
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pursuant to Rule 457(c) promulgated under the Securities Act of 1933, as amended. |
(1) Calculated in accordance with Rule 457(c).
(2) Calculated in accordance with Rule 457(g).
The Registrant hereby amends this Registration Statementregistration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statementregistration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this Registration Statementregistration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information contained in this prospectus is not complete and may be changed. The selling stockholders may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS
2,355,600
(SUBJECT TO COMPLETION, DATED JUNE 3, 2002)
944,100 Shares
BIOLASE TECHNOLOGY, INC.
Common Stock
_______________
This Prospectusprospectus relates to an aggregatethe sale of 2,355,600up to 221,600 shares of our common stock (and associated purchase rights) by the selling stockholders identified on page 12 of this prospectus and 722,500 shares of common stock $.001 par value ("Common Stock") of BioLase Technology, Inc., a Delaware
corporation ("BioLase" and, together with its consolidated subsidiary, the
"Company"), heretofore issued to the persons listed herein (the "Selling
Stockholders"), or issuable to the Selling Stockholders pursuant to, among other
things, theupon exercise of immediately exercisable warrants to purchase common stock (and associated purchase rights) held by the Company's Common Stock Purchase Warrants (the
"Warrants"). Suchselling stockholders. The prices at which the selling stockholders may sell the shares of Common Stock are being offeredwill be determined by the prevailing market for the respective
accounts of the Selling Stockholders on The Nasdaq SmallCap Market at the then-
prevailing prices,shares or in negotiated transactions. The Common Stock is traded on
The Nasdaq SmallCap Market under the symbol "BLTI". On June 29, 1998, the last
sale price of the Common Stock as reported on The Nasdaq SmallCap Market was
$3.125 per share. The CompanyWe will not receive noany proceeds from the sale of such
shares of Common Stock by the Selling Stockholders; however, itoffered under this prospectus. However, we will receive proceeds from the exercise of the Warrants. See "Use of Proceeds". The expenses
of preparing and filing the Registration Statement, of which this Prospectus
forms a part (estimated at $20,000), are being paidwarrants by the Company.
_______________
SEE "RISK FACTORS" BEGINNING ON PAGE 3 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
_______________
selling stockholders and those proceeds will be used for our general corporate purposes.
Our common stock is quoted on the Nasdaq National Market under the symbol “BLTI.” On May 31, 2002, the last reported sale price of our common stock was $5.35 per share.
The shares of common stock offered hereby were or will be acquired bysold under this prospectus involve a high degree of risk. You should carefully consider the Selling
Stockholders from the Company in private placements or upon the exerciserisk factors beginning on page 2 of the
Warrants and are "restricted securities" under the Securities Act of 1933, as
amended (the "Securities Act"). This Prospectus has been prepared for the
purpose of registering the shares under the Securities Act to allow for future
sales by the Selling Stockholders to the public without restriction. To the
knowledge of the Company, the Selling Stockholders have made no arrangement withthis prospectus before purchasing any brokerage firm for the sale of the shares. The Selling Stockholders may be
deemed "underwriters" within the meaning of the Securities Act. Any commissions
received by a broker or dealer in connection with resales of the shares may be
deemed underwriting commissions or discountsof common stock offered under the Securities Act. See "Plan
of Distribution".
The date of this Prospectus is July __, 1998.
1
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
annual and quarterly reports, proxy statements and other information withprospectus. Neither the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and othernor any state securities commission has approved or disapproved of these securities, or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is June 3, 2002.
You should rely only on information concerning the Company can be inspected at the
Commission's Public Reference Section, Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, as well as at the Commission's regional offices at 7
World Trade Center, 13th Floor, New York, New York 10048 and at Citicorp Center,
500 West Madison Street, Room 1400, Chicago, Illinois 60661-2511. Copies of such
material can also be obtained at prescribed rates at the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. In
addition, the Commission maintains a World Wide Web site on the Internet at
http:\\www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants, including the Company, that file
electronically with the Commission.
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements appearing elsewhere in this Prospectuscontained or incorporated herein by reference. The factors discussed below under "Risk
Factors - Forward Looking Statements" and elsewhere in this Prospectus,
including documents incorporated herein by reference, are among certain risks,
uncertainties and other factors that in some cases have affected BioLase's
historic results and could cause actual results in the future to differ
significantly from the results anticipated in forward looking statements made in
this Prospectus, including documents incorporated herein by reference in future
filingsthis prospectus. We have not authorized any person to provide you with information that differs from what is contained or incorporated by BioLase with the Commission, in BioLase's press releases and in oral
statements made by authorized officers of BioLase. When usedreference in this Prospectus, including documentsprospectus. If any person does provide you with information that differs from what is contained or incorporated herein by reference in this prospectus, you should not rely on it. This prospectus is not an offer to sell or the words
"estimate", "project", "anticipate", "expect", "intend", "believe", "hope",
"may"solicitation of an offer to buy any securities other than the securities to which it relates, or an offer of solicitation in any jurisdiction where offers or sales are not permitted. The information contained in this prospectus is accurate only as of the date of this prospectus, even though this prospectus may be delivered or shares may be sold under this prospectus on a later date.
In this prospectus, the terms “BioLase,” “our company,” “we,” “our,” and similar expressions, as well as "will", "shall" and other indications
of future tense, are intended“us” refer to identify forward looking statements.
THE COMPANY BioLase Technology, Inc.,
We are a Delaware corporation ("BioLase" and, together
with its consolidated subsidiary, the "Company"),medical technology company that designs, develops, manufactures and markets laser-basedadvanced dental, cosmetic and surgical products. Our principal products are water and laser based systems currently focused for use in dentaldentistry, and medical
applications. The current generationconsist of the Company's laser-based systems
incorporates its proprietary technology ("HydroKinetic(TM)"WaterlaseTM (HydroKinetic®) into its surgical
tissue cutting system ("Millennium(TM)"), which utilizes electromagnetic energy
laser pulses from an erbium, chromium: yttrium scandium gallium garnet ("Er,Cr:
YSGG") laser and a proprietary air-water spray. In a configuration utilizing
higher power settings, the laser pulses act to rapidly energize and transform
atomized water droplets from the air-water spray into smaller, high-speed
mechanical cutting water particles, and the Millennium(TM) system, when
operating in this manner, is intended for use primarily in hard tissue
applications. In a configuration utilizing lower power settings, the Er,Cr: YSGG
laser incorporated into the Millennium(TM) system acts as a conventional laser,
with the air-water spray serving as a cooling agent. When operating in this
manner, the Millennium(TM) system is intended for use in soft tissue
applications. The Millennium(TM) system is currently marketed in the United
States for soft tissue dental applications and is distributed in Germanyused for both hard and soft tissue dental applications. See "Risk Factors -- Reliance on
Principal Customer". In July 1997,applications, the Company received clearance from the Food
and Drug Administration ("FDA") to market a laser-based surgical tissue cutting
system in the United StatesTwiLiteTM diode laser used solely for a broad range of dermatological and general
surgical soft tissue applications. In response to this clearance, the Company
intends to introduce this laser-based system in a configuration designed for
lower power settingsapplications and LaserSmileTM, an add-on application to the domesticTwiLite laser for cosmetic teeth whitening. We also market underour HydroKinetic technology for complete root canal therapy (EndoLaseTM) and for cutting, shaving, contouring and resection of oral osseous tissues (bone) (OsseoLaseTM).
In May 2002, our common stock was listed and began trading on the Nasdaq National Market. Our common stock previously traded on the Nasdaq SmallCap Market.
We were incorporated in Delaware in February 1987 as Pamplona Capital Corp., and we changed our name
DermaLase(TM). The
Company has applied to
the FDA for clearancePFG Dental Incorporated in July 1989. We then changed our name to
market the Millennium(TM)Endo Technic International Corporation in
the
United States for hard tissue dental applications,August 1989, to Laser Endo Technic Corporation in August 1991, to Laser Medical Technology, Inc. in March 1992 and
clinical studiesfinally to BioLase Technology, Inc. in
support of the application have been completed and submitted to the FDA for its
review. The Company supports its earlier generations of laser-based systems with
replacement parts and service. The Company also has (i) an automated system used
in endodontic procedures for locating and shaping root canals, known as the
Canal Finder System(TM), which the Company markets along with a full range of
other proprietary and non-proprietary endodontic products, and (ii) an air-water
spray laser accessory, LaserSpray(TM), designed to cool the tissue receiving
laser energy and the surrounding tissue, that is incorporated into the Company's
laser-based systems and can be employed with fiber-coupled laser systems
manufactured by others. The Company is also developing LaserBrush(TM), a
toothbrush that utilizes a light source to activate whitening and anti-bacterial
agents in special toothpaste compounds also being developed by the Company; a
fluid conditioning system, known as FlavorFlow(TM), that sanitizes, flavors and
administers fluids and enhances the scent of air present during dental and
medical procedures; and a line of biomaterials for dental and medical
applications.
2
The Company'sMay 1994. Our principal executive offices are located at 981 Calle Amanecer, San Clemente, California 92673, and itsour telephone number at that
location is (949) 361-1200.
Recent Development
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On April 14, 1998, the Company announced that it had entered into a letter
of intent under which it would acquire all of the assets of Laser Skin Toner,
Inc., a development stage company that is developing a proprietary non-invasive,
laser-based surgical technology applicable to aesthetic skin rejuvenation.
Completion of the acquisition Our business is subject to a number of conditions including
satisfactory completionrisks, some of due diligence examinationswhich are discussed below. Other risks are presented elsewhere in this prospectus and the negotiation and
execution of a mutually acceptable definitive agreement.
THE OFFERING
Common Stock offered hereby....................... 2,355,600 shares
Common Stock to be outstanding
after this Offering.............................. 15,802,587 shares(1)
Use of proceeds................................... The Company will not receive
any portion of the proceeds
from the Common Stock to be
sold in this Offering;
however, it will receive
proceeds from the exercise
of Warrants, which proceeds
will be used for working
capital and general
corporate purposes. See "Use
of Proceeds".
_______________
(1) Based on the number of shares outstanding at May 31, 1998. Assumes
exercise of the Warrants; excludes (i) 1,656,960 shares of Common Stock,
not being registered hereunder, reserved for issuance upon exercise of
other warrants and options outstanding at May 31, 1998; and (ii) 261,899
shares of Common Stock otherwise reserved for possible issuance under the
Company's 1990, 1992 and 1993 Stock Option Plans and 1990 and 1993 Stock
Compensation Plans.
RISK FACTORS
THIS OFFERING INVOLVES SUBSTANTIAL INVESTMENT RISK, AND THE SHARES SHOULD
BE PURCHASED ONLY BY PERSONS WHO CAN AFFORD THE LOSS OF THEIR ENTIRE INVESTMENT.
IN EVALUATING AN INVESTMENT IN SHARES OF THE COMPANY, PROSPECTIVE INVESTORS
SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS, AMONG OTHERS, AS WELL AS
ALL OTHER INFORMATION SET FORTH HEREIN, INCLUDING THE EXHIBITS HERETO. THE
FOLLOWING DISCUSSION OF RISK FACTORS IS NOT COMPREHENSIVE, AND EACH PROSPECTIVE
INVESTOR IS ADVISED TO MAKE ITS OWN ANALYSIS OF THE RISKS ASSOCIATED WITH AN
INVESTMENT IN THE SHARES.
1. History of Net Losses; Future Profitability Uncertain. The Company
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reported net losses of $7,549,262, $3,050,333, $2,023,822, $2,463,259 and
$2,823,910 for the years ended December 31, 1993, 1994, 1995, 1996 and 1997,
respectively, and net losses of $767,734 and $829,111 for the three months ended
March 31, 1997 and 1998, respectively. The Company had an accumulated deficit of
$28,452,450 at March 31, 1998. During the past five years, the Company has not
generated sufficient revenue to permit it to operate on a profitable basis. The
Company's ability to achieve profitable operations in the future will depend in
large part upon obtaining regulatory approvals forinformation incorporated by reference into the marketing of various
products for certain applications and then successfully bringing its productsprospectus. Before deciding to
market and generating sufficient revenue to produce a net profit. The likelihood
of long-term success of the Company must be considered in light of the expenses,
difficulties and delays frequently encountered in the development and
commercialization of new products and competitive factors in the marketplace, as
well as the burdensome regulatory environment in which the Company operates.
There can be no assurance that the Company will ever achieve significant
revenues or profitable operations.
2. Viability as Going Concern; Need for Additional Funding. The Company has
-------------------------------------------------------
suffered recurring losses from operations and shows a need for continued funding
that raises substantial doubt about its ability to continue as a going concern.
The Company's ability to continue as a going concern is dependent upon its
ability to obtain outside financing through the issuance of either additional
shares of its Common or Preferred Stock or debt securities and, ultimately, upon
a movement to profitability through increased sales, product improvement through
engineering and cost containment. Management believes that significant
additional capital resources will be required by mid-1999 to support working
capital requirements. The Company's capital requirements depend on numerous
factors, including the progress of its research and development programs, the
progress of pre-clinical and clinical testing, the time and cost involved in
obtaining regulatory approvals, the cost of filing, prosecuting, defending and
enforcing patent claims and other intellectual property rights, competing
technological and market developments, demand for its products, and payment
terms it is able to negotiate with its suppliers and customers.
3
Based on its current business plan, the Company believes that its working
capital will remain adequate to meet its obligations through mid-1999, by which
time it will need to obtain additional equity or debt financing. The Company
has no commitment with respect to any future financing. There can be no
assurance that such financing will be available or available on acceptable
terms, or that such financing would not result in a substantial dilution of
stockholders' interests. If adequate funds are not available, the Company's
ability to meet its obligations would be greatly impaired, and the Company may
be unable to continue operations. The Company's consolidated financial
statements do not include any adjustments that might result from the outcome of
the uncertainty about the Company's ability to continue as a going concern.
The Company's financial statements for the year ended December 31, 1997 were
audited by the Company's independent accountants, whose report includes an
explanatory paragraph stating that the financial statements have been prepared
assuming the Company will continue as a going concern and that the Company has
recurring losses and shows a need for continued funding that raise substantial
doubt about its ability to continue as a going concern.
3. Product Development. The development of new technology is a lengthy and
-------------------
capital intensive process and is subject to unforeseen risks, delays, problems,
and costs. The Company's success will in part depend upon its ability to design,
develop and introduce new products and enhancements on a timely basis to meet
changing customer needs, technological developments and evolving industry
standards. There can be no assurance that the Company will be able successfully
to develop any additional products, including products currently under
development, or enhance existing products. Unanticipated technical or other
problems may occur which could delay the Company's development programs. Failure
to complete development of key products could result in the complete loss of the
funds committed by the Company to such products, which could be substantial. In
addition, products as complex as the Company's laser-based systems may contain
latent defects which could from time to time become apparent during commercial
use. Remedying such defects could require significant modifications at
substantial costs to the Company.
The German distributor of the Company's Millennium(TM) system has requested
a partial redesign of the handpiece, which forms a portion of the delivery
subsystem of the Millennium(TM) system, in order to address more effectively the
requirements of its marketplace. While in the process of effecting this
redesign, the Company has deferred shipment of additional Millennium(TM) systems
to its German distributor. The Company believes that it is making substantial
progress in the redesign of the handpiece.
4. Reliance on Principal Customer. The Company's principal commercial
------------------------------
product at the present time is its Millennium(TM) laser-based system. Dentistry
is the principal field in which the Millennium(TM) system is currently utilized,
and while the Millennium(TM) system is being distributed in Germany for both
hard and soft tissue dental applications, it can currently be marketed in the
United States only for soft tissue dental applications. The Company has applied
to the FDA for clearance to market the Millennium(TM) in the United States for
hard tissue dental applications and is awaiting action by that agency.
Because of the limitations on marketing the Millennium(TM) system in the
United States, the German market is currently the predominant market for the
Company's laser based products, and during 1997 approximately two-thirds of the
Company's net sales were made to the German distributor of the Millennium(TM)
system. The Company is currently deferring further sales to that customer while
the Company is engaged in the redesign of the handpiece for the Millennium(TM)
system. As a result, the Company's revenues during the first quarter of 1998
were, and the Company's revenues for the second quarter of 1998 will be,
substantially less than the Company's revenues during the third and fourth
quarters of 1997, which averaged approximately $609,000 per quarter, although
greater than the revenues recorded during the comparable 1997 quarter. In order
to promote the introduction of the Millennium(TM) system, the Company provided
the distributor introducing that system in Germany, the first market to be
approached, with extended payment terms. As a result, accounts receivable at
December 31, 1997 were $1,060,000, as compared to $146,000 at December 31, 1996.
By the end of the second quarter of 1998, substantially all of these accounts
receivable had been collected.
5. Uncertainty of Product and Market Acceptance. The Company is only in the
--------------------------------------------
initial phases of the marketing of its HydroKinetic(TM) tissue cutting system,
the Millennium(TM) system. Initial sales to a German distributor commenced
during the second quarter of 1997. In July 1997, the Company received FDA
clearance to market a laser system incorporating a variation of the technology
utilized in the Millennium(TM) for a broad range of dermatological and general
surgical soft tissue applications. In this variation, called DermaLase(TM), the
utilization of lower power laser pulses does not result in the transformation of
water droplets into mechanical cutting water particles, but rather the air-water
spray acts as a cooling agent. There can be no assurance that the Millennium(TM)
system, including the DermaLase(TM) configuration, will receive market
acceptance; in addition, there can be no assurance that there will be market
acceptance of any of the Company's other products that may be introduced in the
future. Lasers have not been widely used in certain medical and dental
applications, and their effective use requires training and experience. The
acceptance of lasers may be adversely affected by their high cost, concerns by
patients and practitioners about their safety and efficacy, and the substantial
market acceptance and penetration of conventional dental and medical tools.
Current economic pressure may make dental and medical practitioners reluctant to
purchase substantial capital equipment or invest in new technology. The failure
of dental and medical lasersour company or to achieve broad market acceptance would have a
material adverse effect on the Company's business, financial condition and
results of operations.
While the Company believes that the technology incorporated in its
Millennium(TM) surgical tissue cutting systemmaintain or increase your investment, you should be effective in a broad
range of medical and dental applications, this belief (except with respect to
dental hard tissue and certain dermatological applications, for which clinical
research has been conducted) is based largely on preliminary in vitro and in
vivo research and extrapolation of observations in such clinical research. No
assurances can be given that the technology incorporated in its Millennium(TM)
surgical tissue cutting system will prove to be applicable to, or will find
market acceptance in, any medical or dental fields or that the Company will
receive clearance from the FDA or other regulatory agencies to market the
Millennium(TM) or any other laser-based system or other products embodying its
HydroKinetic(TM) technology in any additional jurisdictions or for any
additional applications. No assurances can be given that any other technologies
or products that the Company is developing will prove effective or will find
market acceptance.
4
6. International Sales. In the years ended December 31, 1993, 1994, 1995,
-------------------
1996 and 1997, approximately 30%, 57%, 70%, 47% and 73%, respectively, of the
Company's sales were export sales, of which approximately 100%, 85%, 72%, 80%
and 93%, respectively, were sales to Europe. To the extent that international
sales continue to make a substantial contribution to Company revenues, currency
fluctuations could make the Company's products less competitive in foreign
markets, contribute to fluctuations in the Company's operating results and, if
the Company makes sales denominated in foreign currencies or maintains
significant net assets or liabilities denominated in foreign currencies, expose
the Company to currency exchange valuation risks. Political instability, longer
receivable collection periods and difficulty in collecting accounts receivable
also pose risks to international sales. Moreover, the laws of certain countries,
or the enforcement thereof, may not protect the Company's products, intellectual
property rights or contractual rights to the same extent as the laws of the
United States. There can be no assurance that these factors will not have a
material adverse effect on the Company's business and financial condition and
results of operations.
7. Product Liability Risk; Limited Insurance Coverage. The manufacture and
--------------------------------------------------
sale of the Company's laser-based systems entail significant risk of product
liability claims in the event that the use of such systems is alleged to have
caused adverse effects on a patient. Although the Company has taken and will
continue to take what it believes are appropriate precautions, including
maintaining general liability and commercial liability insurance policies which
include coverage for product liability claims, there can be no assurance that
the Company's insurance coverage limits are or will be adequate to protect the
Company from any liabilities it might incur in connection with the sale of its
products. In the future, product liability insurance or such increased coverage
as the Company may desire may not be available on acceptable terms or on any
basis whatsoever. A product liability claim or series of claims successfully
asserted against the Company in excess of its insurance coverage could have a
material adverse effect on the Company's business and financial condition and
results of operations. Additionally, it is possible that adverse product
liability actions could negatively affect the Company's ability to obtain and
maintain regulatory approval for its products, as well as damage the Company's
reputation in any or all markets in which it participates.
8. Competition; Possible Technological Obsolescence. Development by others
------------------------------------------------
of new or improved products, processes, or technologies may make the Company's
products obsolete or less competitive. The ability of the Company to compete is
dependent on the Company's ability regularly to enhance and improve its products
and successfully develop and market new products. Many of the Company's
competitors have greater, and in some cases much greater, financial, managerial,
marketing, and technical resources than the Company. There can be no assurance
that the Company will successfully differentiate itself from its competitors,
that the market willcarefully consider the Company's products to be superior to its
competitors' products, that the Company's competitors will not develop new or
enhanced products that are more effective than the products which have been or
may be developed by the Company, or that the Company will be able to adapt to
evolving markets and technologies, develop new products, or achieve and, if
achieved, maintain technological advantages.
9. Patents and Proprietary Rights; Proprietary Technology. The Company
------------------------------------------------------
relies, to a significant extent, on patents, trade secrets and confidentiality
agreements to protect its proprietary technology. There can be no assurance as
to the breadth or degree of protection which existing or future patents, if any,
may afford the Company, that such patents will not be circumvented or
invalidated, or that the Company's products do not and will not infringe on
patents or violate proprietary rights of others. If a patent infringement claim
is asserted against the Company, or if the Company is required to enforce its
rights under an issued patent, the cost of such actions may be very high,
whether or not the Company is successful. While the Company is unable to predict
what such costs would be if it is obligated to pursue patent litigation, its
ability to fund its operations and to pursue its business goals may be adversely
affected.
10. Government Regulation. The Company's products are subject to
---------------------
significant government regulation in the United States and other countries. To
test clinically, produce, and market products for human diagnostic and
therapeutic use, the Company must comply with mandatory procedures and safety
standards established by the FDA and comparable foreign regulatory agencies.
Typically, such standards require that products be approved by the government
agency as safe and effective for their intended use before being marketed for
human applications. The approval process is expensive and time-consuming, and no
assurance can be given that any agency will grant approval for the sale of the
Company's products for various dental and medical applications, or that the
length of time and the expenditures that the approval process will require will
not be extensive.
The FDA also imposes requirements on manufacturers and sellers of products
under its jurisdiction, such as those relating to labeling, manufacturing
practices, record keeping, and reporting. The FDA also may mandate post-
marketing practices, including those relating to record keeping and reporting.
There can be no assurance that the appropriate approvals from the FDA will
be granted, that the process to obtain such approvals will not be expensive or
lengthy, or that the Company will have sufficient funds to pursue such
approvals. The failure to receive requisite approvals for certain of the
Company's products or processes, when and if developed, or significant delays in
obtaining such approvals, could prevent the Company from commercializing its
products as anticipated, and could have a material adverse effect on the
business of the Company.
The Company is also subject to regulation under the Radiation Control for
Safety and Health Act administered by the Center for Devices and Radiological
Health ("CDRH") of the FDA. This law requires laser manufacturers to file new
product and annual reports, to maintain quality control, product testing, and
sales records, to incorporate certain design and operating features in lasers
sold to end-users, and to certify and label each laser sold to an end-user as
belonging to one of four classes, based on the level of
5
radiation from the laser that is accessible to users. Various warning labels
must be affixed and certain protective devices installed, depending on the class
of the product. The CDRH is empowered to seek fines and other remedies for
violations of regulatory requirements.
Various state dental boards are considering the adoption of restrictions on
the use of lasers by dental hygienists. In addition, dental boards in a number
of states are considering educational requirements regarding use of dental
lasers. While the scope of these restrictions and educational requirements is
not now known, they could have an adverse effect on sales of the Company's
laser-based products.
The FDA and other governmental agencies, both in the United States and in
foreign countries, may adopt additional rules and regulations that may affect
the Company's ability to develop and market its products.
11. Dependence on Suppliers. The Company purchases most of the components
-----------------------
included in its products from multiple suppliers; however, it does not maintain
long-term supply contracts with any of these suppliers. In addition, the Company
purchases the optical fiber used in the delivery system of its Millennium(TM)
system, including the DermaLase(TM) configuration, from a single source. The
disruption or termination of this source could have a material adverse effect on
the Company's ability to manufacture its Millennium(TM) system and,
consequently, on its business, financial condition and results of operations.
12. Possible Volatility of Common Stock Price; Limited Public Market;
-----------------------------------------------------------------
Compliance With Nasdaq Listing Requirements. The Company's Common Stock has been
- -------------------------------------------
listed on The Nasdaq SmallCap Market since November 12, 1992, and the Company
has no present plans to apply to list the Common Stock on any other domestic
securities exchange. In April 1997, the Company's Common Stock was also listed
on the Berlin Stock Exchange. Trading in the Common Stock has generally been
sporadic since its listing on The Nasdaq SmallCap Market, and there can be no
assurance that an active trading market in the Common Stock will be established
or maintained.
The market prices for securities of emerging companies, including the
Company, have historically been highly volatile. Significant volatility in the
market price of shares of Common Stock may arise due to factors such as the
Company's developing business, historic losses and relatively low price per
share. In addition, future announcements concerning the Company or its
competitors may have a significant impact on the market price of the Common
Stock. Such announcements might include financial results, the results of
testing, technological innovations, new commercial products, changes to
government regulations, government decisions on commercialization of products,
developments concerning proprietary rights, litigation or public concern as to
safety of the Company's products. As long as there is only a limited public
market for the Common Stock, the sale of a significant number of shares of
Common Stock at any particular time could be difficult to achieve at the market
prices prevailing immediately before such shares are offered, and the offering
of a significant number of shares of Common Stock at one time could cause a
severe decline in the price of the Common Stock.
For continued inclusion on The Nasdaq SmallCap Market, an issuer must
maintain (i) net tangible assets (total assets less the sum of total liabilities
and goodwill) of at least $2,000,000, (ii) net income of no less than $500,000
in the most recent fiscal year or in two of the three most recent fiscal years,
or (iii) market capitalization of at least $35,000,000,risks described below, in addition to a minimum
bid price of $1 per share, a market value of the public float of at least
$1,000,000, a public float of at least 500,000 shares, at least two market
makers, and a minimum of 300 holders of 100 or more shares. At May 29, 1998, the
Company had net tangible assets of $4,227,451, a market capitalization of
approximately $53,663,000, a public float of approximately 11,700,000 shares
worth approximately $42,413,000, and more than 300 holders of record owning at
least 100 shares each. On that date, however, it did not meet the alternative
net income criterion. If the Company continues to suffer significant losses from
operations without additional financing, it may not be able to meet the
requirements for the continued listing of Common Stock on The Nasdaq SmallCap
Market, in which case the Common Stock may be delisted from trading on The
Nasdaq SmallCap Market.
If the Common Stock were excluded from quotation and trading on The Nasdaq
SmallCap Market, it would likely trade on the over-the-counter market, in what
is commonly referred to as the "Electronic Bulletin Board" or "pink sheets".
Should that occur, holders of Common Stock may find it more difficult to dispose
of, or to obtain accurate quotations for the market price of, Common Stock. In
addition, if the Common Stock is not quoted on The Nasdaq SmallCap Market, it
may be subject to a rule that imposes restrictive sales practice requirements on
broker-dealers selling such securities to persons other than established
customers and accredited investors. For transactions covered by this rule, the
broker-dealer must, among other requirements, make a special suitability
determination regarding the purchaser and must receive the purchaser's written
consent to the transaction prior to any purchase. Consequently, the rule may
restrict the ability of broker-dealers to sell or limit the interest of broker-
dealers in selling Common Stock and may adversely affect the ability of holders
of Common Stock to sell shares. The exclusion of a security from continued
quotation on The Nasdaq SmallCap Market may also cause a decline in share price,
a diminution of news coverage of the Company, and greater difficulty in
arranging future financing.
13. Reliance Upon Key Employees; Additional Personnel. The success of the
-------------------------------------------------
Company is substantially dependent on the efforts of certain key personnel of
the Company. The Company does not presently have employment contracts with any
of its key
6
personnel. The loss of such key personnel could adversely affect the Company's
business and prospects. In such event, there can be no assurance that the
Company would be able to employ qualified replacements on terms favorable to the
Company.
The Company presently employs thirty-four (34) people. If and when the
scale of the Company's operations increases, the Company will be required to
increase the number of employees, including the number of management personnel.
No assurance can be given that the Company will be able to attract and retain
additional personnel, and particularly management personnel, having the
capabilities that the Company will seek.
In seeking qualified personnel, the Company will be required to compete
with companies having greater financial and other resources than the Company
has. As some of its products are developed, the Company will have to attract
additional marketing, manufacturing, technical, scientific and administrative
personnel. Since the future success of the Company is, to a significant degree,
dependent upon its ability to attract and retain qualified personnel, the
Company's inability or failure to attract and retain such personnel could have a
materially adverse impact on the business of the Company.
14. No Dividends on Common Stock. The Company has not paid any cash
----------------------------
dividends on its Common Stock since its incorporation, and the Board of
Directors does not anticipate declaring any cash dividends on Common Stock in
the foreseeable future. The Company currently intends to utilize any earnings it
may achieve for reinvestment in its business. Future dividend policy will also
depend on the Company's earnings, capital requirements, financial condition,
debt covenants, and other factors considered relevant by the Company's Board of
Directors. It is unlikely that any dividends on Common Stock will be declared by
the Company in the foreseeable future.
15. Possible Issuance of Additional Shares. The Company is authorized to
--------------------------------------
issue 50,000,000 shares of Common Stock, of which 14,803,587 shares were issued
and outstanding as of May 31, 1998. As of that date, 3,323,536 shares of
Common Stock had been reserved for future issuance upon exercise of outstanding
options and warrants, and an additional 261,899 shares have been reserved for
possible issuance pursuant to the Company's stock option and stock compensation
plans. Further, the Company has authorized 1,000,000 shares of preferred stock,
$.001 par value per share (the "Preferred Stock"), of which 100 shares had been
designated and issued as Series A 6% Redeemable Cumulative Convertible Preferred
Stock, none of which is currently outstanding. The Company's Board of Directors
has authority to issue Preferred Stock in one or more series and to fix the
rights, privileges, restrictions and preferences thereof. Accordingly, the
Company may issue one or more series of Preferred Stock in the future that will
have preference over the Common Stock with respect to the payment of dividends
and upon its liquidation, dissolution, or winding up or have voting or
conversion rights which could adversely effect the voting power and percentage
ownership of the holders of the Common Stock. Although it has no present
commitments to do so (except as noted above), the Company may issue additional
shares of Common Stock, additional shares of Preferred Stock and other
securities in the future.
16. Impairment of Intangible Assets. During the fourth quarter of 1994, the
-------------------------------
Company recorded a charge of $959,000, representing a provision for the
impairment of the carrying value of its patents due to uncertainty regarding the
recoverability of such carrying value. The Company's 1994 evaluation included
consideration of such factors as the Company's failure by the fourth quarter of
1994 to achieve sufficient sales to permit profitable operations, extinguishment
of debt which had been issued to acquire certain patents, and the
underutilization of issued patents in various jurisdictions. In the event the
expected net cash flows from other long-lived assets is less than the carrying
value of such assets, the Company could suffer additional impairment losses.
17. Broad Discretion in Use of Proceeds. As set forth in "Use of
-----------------------------------
Proceeds", the net proceeds from the exercise of Warrants have not been
allocated to specific purposes, but rather will be applied to general working
capital, the refinement and improvement of existing products, and the
development of products currently under development and products the Company may
develop in the future. Management will have considerable discretion in applying
such proceeds.
18. Forward-Looking Statements. The forward looking statementsinformation contained
-------------------------- in this Prospectus are subject to various risks, uncertainties and other factors
that could cause actual results to differ materially fromprospectus (including the results
anticipated in such forward looking statements. Included among the important
risks, uncertainties and other factors are those hereinafter discussed.
Few of the forward looking statements in this Prospectus deal with matters
that are within the unilateral control of the Company. There is substantial
government regulation of the manufacture and sale of medical products, including
many of the Company's products,information incorporated by governmental agencies in both the United
States and foreign countries. These governmental agencies often have
considerable discretion in determining whether and when to approve the marketing
of the Company's products that have not yet received such approval.
The availability of equity and debt financing to the Company is affected
by, among other things, domestic and world economic conditions and the
competition for funds. Rising interest rates might affect the feasibility of
debt financing that is offered. Potential investors and lenders will be
influenced by their evaluations of the Company and its products and comparisons
with alternative investment opportunities.
The Company's products do not provide the exclusive means for accomplishing
an objective, and customers may choose alternative means. Many of the Company's
competitors have much greater financial resources and technical capabilities
than does the
7
Company, which may enable such competitors to design and produce superior
products or to market their products in a manner that achieves commercial
success even in the face of technical superiority on the part of the Company's
products.
The Company's patents may not offer effective protection against
competitors. Competitors may be able to design around the Company's patents or
employ technologies not covered by such patents. In addition, the Company's
patents may be challenged, and even if such patents are upheld, the diversion of
financial and human resources associated with patent litigation could adversely
affect the Company. The Company may be found to be violating the patents of
others and forced to obtain a license under such patents or modify the design of
its products.
Rapid technological developments are expected to continue in the industries
in which the Company competes. The Company may not be able to develop,
manufacture and market products which meet changing user requirements or which
successfully anticipate or respond to technological changes on a cost-effective
and timely manner.
While the Company believes that its technology incorporated into its
Millennium(TM) surgical tissue cutting system should be effective in a broad
range of medical and dental applications, this belief (except with respect to
dental hard tissue and certain dermatological applications, for which clinical
research has been and is being conducted) is based largely on preliminary in
vitroreference) and in vivo research and extrapolation of observations in such clinical
research. No assurances can be given that the Company's Millennium(TM)
technology will prove to be applicable to, or will find market acceptance in,
any medical or dental fields or that the Company will receive clearance from the
FDA orour other regulatory agencies to market the Millennium(TM) system or other
products embodying its HydroKinetic(TM) technology or variations thereof for any
additional applications or in any additional jurisdictions. See "Business - The
Millennium(TM)System."
USE OF PROCEEDS
The Company will not receive any portion of the proceeds from the sale of
Common Stock to be sold in this Offering. The Company may receive net proceeds
of up to $3,815,000 from the exercise of the Warrants; management currently
anticipates that any such proceeds will be utilized for working capital and for
other general corporate purposes.
8
PRINCIPAL AND SELLING STOCKHOLDERS
The following table sets forth certain informationfilings with respect to the
beneficial ownership of the Common Stock of the Company as of May 31, 1998
(assuming exercise of the Warrants), and as adjusted to reflect the sale of the
2,355,600 shares of Common Stock offered hereby, (i) by all persons known by the
Company to beneficially own more than 5% of the outstanding shares, (ii) by each
director of the Company, (iii) by the Named Executive Officer; (iv) by all
executive officers and directors of the Company as a group, and (v) by the
Selling Stockholders. Unless otherwise indicated, the persons listed below have
sole voting and investment power with respect to the shares listed across from
their names in the table below.
Shares Beneficially Owned Shares to be Sold Shares Beneficially Owned
Name of Beneficial Owner Before Offering(1) in This Offering After Offering(1)
- ------------------------------------------------------- ------------------------- ----------------- -------------------------
Number Percent Number Number Percent
------------- --------- ----------------- ------------ ----------
Federico Pignatelli(2) 353,750 2.2 - 353,750 2.2
Donald A. La Point(3) 403,076 2.5 - 403,076 2.5
George V. d'Arbeloff(4) 51,517 * - 51,517 *
All executive officers and directors
as a group (9 persons)(5) 1,321,006 7.8 - 1,321,006 7.8
Advisor's Capital Investments Inc.
dba Perspective Advisory Group(6) 1,600,661 10.1 675,000 925,661 5.9
Brynley B. Archer 15,000 * 15,000 - *
Barclay Investments, Inc. 22,250 * 22,250 - *
Banca del Gottardo 300,000 1.9 200,000 - *
Carol A. Bingle 15,000 * 15,000 - *
Robert P. Bingle 41,521 * 15,000 26,521 *
Kenneth & Sophie Brown 15,000 * 15,000 - *
BSI -- Banca della Svizzera Italiana 300,000 1.9 300,000 - *
CBG Compagnie Bancaire Geneve 75,000 * 75,000 - *
Eric Robert & Gail Coble 75,000 * 60,000 15,000 *
Corner Bank (Luxembourg) S.A. 165,000 1.1 165,000 - *
Credit Bancorp 15,000 * 15,000 - *
Jack & Carolyn DeSantis 15,000 * 15,000 - *
Eurocapital Limited 41,500 * 41,500 - -
Lawrence K. Fleischman 43,182 * 15,000 28,182 *
Terry A. Fuller, M.D. 50,000 * 50,000 - *
Alex & Irene Gonik 15,000 * 15,000 - *
Gem Holdings 111,600 * 111,600 - *
Raymond Halliwell 15,000 * 15,000 - *
Kazimierz & Maria Ilnicki 27,799 * 15,000 12,799 *
Mary Lee Ingoldsby 45,000 * 45,000 - *
Interbanc Mortgage Services, Inc. 105,000 * 105,000 - *
Interbanc Mortgage Services, Inc., Profit Sharing Plan
and Trust 15,000 * 15,000 - *
Lemanik Sicav Active Growth 105,000 * 105,000 - *
J. Scott Liolos 46,000 * 45,000 1,000 *
Edmond O'Donnell 66,182 * 30,000 36,182 *
Pac Capital Strategies Limited Partnership 75,000 * 75,000 - *
Pacific Consulting 150,000 * 150,000 - *
PacVest Associates 91,615 * 15,250 76,365 *
Swiss Bank Corporation 423,750 2.7 210,000 213,750 1.4
Trout Trading Company, Inc. 15,000 * 15,000 - *
UT Radiology Inc. Discretionary Plan F.B.O. Charles H.
Mandell 150,000 * 150,000 - *
Union Bancaire Privee 90,000 * 90,000 - *
Jeffrey Warren Wessel 17,500 * 15,000 2,500 *
Roger E. Wood 15,000 * 15,000 - *
______________
* Less than one percent.
9
(1) The number of shares beneficially owned by each stockholder is determined
under rules promulgated by the Securities and Exchange Commission, and the
information is not necessarily indicative of beneficial ownership for any
other purpose. Under such rules, beneficial ownership includes any shares
as to which the individual has sole or shared voting or investment power
and also any shares which the individual has the right to acquire within 60
days after May 31, 1998. The inclusion herein of such shares, however, does
not constitute an admission that the named stockholder is a direct or
indirect beneficial owner of such shares. Unless otherwise indicated, each
person or entity named in the table has sole voting and investment power
(or shares such power with his or her spouse) with respect to all shares of
Common Stock listed as owned by such person or entity.
(2) Includes 171,250 shares of Common Stock issuable pursuant to options
exercisable on or within 60 days of May 31, 1998.
(3) Includes 400,000 shares of Common Stock issuable pursuant to options
exercisable on or within 60 days of May 31, 1998.
(4) Includes 33,335 shares of Common Stock issuable pursuant to options and
warrants exercisable on or within 60 days of May 31, 1998.
(5) Includes 1,031,460 shares of Common Stock issuable pursuant to options and
warrants exercisable on or within 60 days of May 31, 1998.
(6) The address of Advisor's Capital Investments, Inc. is 17 Tripp Road,
Woodstock, Connecticut 06281. Advisor's Capital Investments, Inc.
expressly disclaims beneficial ownership of the shares of Common Stock
attributed to it in the above table; it does not have sole or shared power
or ability to direct the vote of said shares, but does have shared power to
dispose or direct the disposition of said shares.
PLAN OF DISTRIBUTION
The shares of Common Stock subject to this Prospectus may be sold from time
to time by the Selling Stockholders or their successors, assigns or transferees
in private transactions for their own accounts. The Selling Stockholders may
offer and sell the shares from time to time in transactions on The Nasdaq
SmallCap Market on terms to be determined at the time of such sales. The Selling
Stockholders may also make private transfers directly or through a broker or
brokers. Alternatively, the Selling Stockholders may from time to time offer
shares of Common Stock offered hereby to or through underwriters, dealers or
agents, who may receive consideration in the form of discounts and commissions;
such compensation, which may be in excess of normal brokerage commissions, may
be paid by the Selling Stockholders and/or purchasers of the shares of Common
Stock offered hereby for whom such underwriters, dealers or agents may act. The
Selling Stockholders and any dealers or agents that participate in the
distribution of the shares of Common Stock offered hereby may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act, and
any discounts, commissions or concessions received and any profit realized by
them on the resale of shares as principals may be deemed underwriting
compensation under the Securities Act. The aggregate proceeds to the Selling
Stockholders from sales of the Common Stock offered hereby will be the purchase
price of the Common Stock less any brokers' commissions. The Common Stock
offered hereby may be sold from time to time in one or more transactions at a
fixed price, which may be changed, or at varying prices determined at the time
of such sale or at negotiated prices.
The Common Stock issuable upon exercise of the Warrants and offered hereby
will be issued by the Company in accordance with the respective terms thereof.
The Company is contractually obligated to keep this Prospectus current for
as long a period as any Warrants remain outstanding and for two years
thereafter. The Company may from time to time notify the Selling Stockholders
that this Prospectus is not current and that sales of the Common Stock may not
occur until the Prospectus is supplemented by sticker or amendment, as
appropriate. To the extent required, the specific shares of Common Stock to be
sold, the names of the Selling Stockholders, the respective purchase prices and
public offering prices, the names of any agent, dealer or underwriter and any
applicable commissions
10
or discounts with respect to a particular offer will be set forth in an
accompanying Prospectus supplement, or, if appropriate, a post-effective
amendment to the Registration Statement of which this Prospectus forms a part.
The laws of certain states may require that sale of the shares of Common
Stock offered hereby be conducted solely through brokers or dealers registered
in those states. In addition, in certain states the shares of Common Stock
offered hereby may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption therefrom is available.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the Common Stock offered hereby may not
simultaneously engage in market making activities with respect to the Common
Stock for a period of one business day prior to the commencement of such
distribution. In addition, without limiting the foregoing, the Selling
Stockholders will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder including without limitation, Regulation
M, which provisions may limit the timing of purchases and sales of Common Stock
by Selling Stockholders.
The Company will pay substantially all the expenses incurred by the Selling
Stockholders and the Company incident to this Offering and the sale of the
Common Stock offered hereby to the public, but excluding any underwriting
discounts, commissions or transfer taxes. The expenses are estimated to be
approximately $20,000.
The Company has agreed to indemnify the Selling Stockholders against
certain liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
The validity of the Common Stock offered hereby has been passed upon for
the Company by Foley & Lardner, San Francisco, California.
EXPERTS
The consolidated balance sheets as of December 31, 1997 and 1996 and the
consolidated statements of operations, stockholders' equity and cash flows for
each of the three years in the period ended December 31, 1997, incorporated by
reference in this registration statement, have been incorporated herein in
reliance on the report, which includes an explanatory paragraph regarding the
Company's ability to continue as a going concern, of Coopers & Lybrand L.L.P.,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
INCORPORATION BY REFERENCE
The following documents filed by the Company with the Commission (File No.
0-19627) under Section 13(a) or 15(d) of the Exchange Act are hereby
incorporated by reference:
(a) The Company'sour Annual Report on Form 10-K for the year ended December 31, 1997;
(b)2001, as well as our subsequent reports on Form 10-Q and Form 8-K. The Company'srisks and uncertainties described below are not the only ones facing our company. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business operations. If any of these risks actually occur, our business, financial condition or results of operations could be seriously harmed. In that event, the market price for our common stock could decline and you may lose all or part of your investment. Our Business Depends on the Acceptance of Our Products, and It Is Uncertain Whether the Market Will Broadly Accept Our Products.
Our future success will depend on our ability to demonstrate to dentists and physicians the potential cost and performance advantages of our laser systems over traditional methods of treatment and, to a lesser extent, over competitive laser systems. Our products represent relatively new technologies in the dental market, and currently only represent a very small portion of the dental and medical markets. Historically, dental practitioners generally have been slow to adopt new technologies on a widespread basis. Factors that may inhibit mass adoption of laser technologies by dentists and physicians include the cost of the products, concerns about the safety, efficacy and reliability of lasers and the ability to obtain reimbursement of laser procedures under health plans. Current economic pressure may make dentists and physicians reluctant to purchase substantial capital equipment or invest in new technologies. The failure of medical lasers to achieve broad market acceptance would have an adverse effect on our business, financial condition and results of operations. We cannot assure you that we will have sufficient resources to continue to successfully market our products to achieve broad market acceptance.
We Depend on a Limited Number of Suppliers, and If We Cannot Secure Alternate Suppliers, Our Business May Be Harmed.
We purchase certain raw materials and components included in our products from a limited group of qualified suppliers, and we do not have long-term supply contracts with any of our key suppliers. Our growth and ability to meet customer demand depends in part on our ability to obtain timely deliveries of materials and components from our suppliers. Certain components of our products are currently available only from a single source or limited sources. Although we believe that alternate sources of supply are available for most of our single-sourced materials and components, a change in a single or limited source supplier, or an inability to find an alternate supplier, could create manufacturing delays, disrupt sales and cash flow, and harm our reputation, any of which could adversely affect our business, financial condition and results of operations.
Our Quarterly Revenues and Operating Results May Fluctuate in Future Periods and We May Fail to Meet Expectations, Which May Cause The Price of Our Common Stock to Decline.
Our quarterly revenues and operating results have fluctuated and are likely to continue to vary from quarter to quarter due to a number of factors, many of which are not within our control. If quarterly revenues or operating results fall below the expectations of investors or securities analysts, the price of our common stock could decline substantially. Factors that might cause quarterly fluctuations in our revenues and operating results include the factors described in the subheadings below as well as:
| • | | the evolving and varying demand for dental and medical lasers; |
| • | | our ability to develop, introduce, market and gain market acceptance of new products and product enhancements in a timely manner; |
| • | | our ability to control costs; |
| • | | the size, timing, rescheduling or cancellation of significant customer orders; |
| • | | the introduction of new products by competitors; |
| • | | the availability and reliability of components used to manufacture our products; |
| • | | changes in our pricing policies or those of our suppliers and competitors, as well as increased price competition in general; |
| • | | the mix of our domestic and international sales, and the risks and uncertainties associated with our international business; |
| • | | costs associated with any future acquisitions of technologies and businesses; and |
| • | | general global economic and political conditions, including international conflicts and acts of terrorism. |
In addition, a significant amount of our sales in any quarter may consist of sales through a single distributor. As a result, the timing of orders by this distributor may impact our quarter-to-quarter results. The loss of or a substantial reduction in orders from this distributor could seriously harm our business, financial condition and results of operations. Due to all of the factors listed above and the other risks discussed in this report, you should not rely on quarter-to-quarter comparisons of our operating results as an indication of our future performance.
We May Not Be Able to Secure Additional Financing to Meet Our Future Capital Needs.
Our line of credit expires on January 31, 2003. If we are unable to renew our line of credit at that time on acceptable terms, or at all, and we are required to repay the line of credit, absent sufficient cash flow from operations or the sale of securities, the diversion of resources for that purpose will adversely affect our operations and financial condition and our ability to achieve future growth in our net sales. In addition, during 2002 and 2003, all of our long-term debt will become due and payable. Unless we can generate sufficient cash flow from sustained profitability, we will continue to be dependent on the availability of external financing to meet our
operating and capital needs, including the repayment of current debt obligations. We may not be able to secure additional debt or equity financing on terms acceptable to us, or at all, at the time when we need such funding. If we do raise funds by issuing additional equity or convertible debt securities, the ownership percentages of existing stockholders would be reduced, and the securities that we issue may have rights, preferences or privileges senior to those of the holders of our common stock. If we raise additional funds by issuing debt, we may be subject to limitations on our operations, including limitations on the payment of dividends. Our inability to raise additional funds on a timely basis will make it difficult for us to achieve our business plan and will have a material adverse effect on our business, financial condition and results of operations.
We Have Significant International Sales and Are Subject to Risks Associated with Operating in International Markets.
In the past few years, international sales have comprised a significant portion of our net sales. Our international sales declined in 2001, and have not increased in 2002, and political and economic conditions outside the United States could make it difficult for us to increase our international sales or to operate abroad. In addition, in January 2002, we made a significant investment in a production facility in Germany to manufacture and service devices to be sold in Europe.
In the future, we intend to continue to pursue and expand our international business activities. International operations, including our production facility in Germany, are subject to many inherent risks, including:
| • | | political, social and economic instability and increased security concerns; |
| • | | fluctuations in currency exchange rates; |
| • | | exposure to different legal standards; |
| • | | reduced protection for our intellectual property in some countries; |
| • | | burdens of complying with a variety of foreign laws; |
| • | | import and export license requirements and restrictions of the United States and each other country in which we operate; |
| • | | the imposition of governmental controls; |
| • | | unexpected changes in regulatory or certification requirements; |
| • | | difficulties in staffing and managing international operations; |
| • | | longer collection periods and difficulties in collecting receivables from foreign entities; and |
| • | | potentially adverse tax consequences. |
We believe that international sales will continue to represent a significant portion of our net sales, and that continued growth and profitability may require further expansion of our international operations. A substantial percentage of our international sales are denominated in the local currency. As a result, an increase in the relative value of the dollar could make our products more expensive and potentially less price competitive in international markets. Other than a forward contract to offset the risk related to the amounts payable for the German production facility, we do not currently engage in any additional transactions as a hedge against risks of loss due to foreign currency fluctuations. Any of these factors may adversely affect our future international sales and, consequently, affect our business, financial condition and operating results.
If We Are Not Successful in Generating Revenue from Our German Production Facility, Our Business and Financial Condition May Be Materially Adversely Affected.
In January 2002, we committed to invest a significant amount of our available cash in purchasing a German production facility with ten employees and various contracts held by the facility. The production facility is a new operation and we will face significant challenges in integrating it with our existing business and operations, including but not limited to the following:
| • | | entering into service agreements for devices sold in Europe; |
| • | | retraining existing employees in our operations, and hiring additional employees for the facility; |
| • | | integrating the facility’s operations with our existing operations; and |
| • | | generating German facility revenue and achieving profitability. |
The German facility has a very limited operating history upon which to assess whether it will be able to meet all of the challenges required to successfully operate and generate revenue. If we are not able to develop a successful operation with revenue and profits at the German facility, we will not receive the anticipated benefits of our investment in the German facility and our business, financial condition and results of operations would be materially and adversely affected.
We are Exposed to Risks Associated with the Recent Worldwide Economic Slowdown and Related Uncertainties.
Concerns about decreased consumer confidence, reduced corporate profits and capital spending, and recent international conflicts and terrorist and military activity have resulted in a downturn in economic conditions, both domestically and internationally. These unfavorable economic conditions could ultimately cause a slowdown in customer orders, an increase in the number of cancellations and the rescheduling of backlog, if any. In addition, recent political and social turmoil related to international conflicts and terrorist acts may put further pressure on economic conditions in the U.S. and worldwide. Unstable political, social and economic conditions make it difficult for our customers, our suppliers and us to accurately forecast and plan future business activities. If such conditions continue or worsen, our business, financial condition and results of operations could be materially and adversely affected.
If We Are Unable to Protect Our Intellectual Property Rights, Our Competitive Position Could Be Harmed or We Could Be Required to Incur Expenses to Enforce Our Rights.
Our success will depend, in part, on our ability to obtain patent protection for our products and technology, to preserve our trade secrets and to operate without infringing the intellectual property of others. We rely on patents to establish and maintain proprietary rights in our technology and products. However, we cannot assure you that we will be able to obtain any further patents, that any of our proprietary rights will not be challenged, invalidated or circumvented, or that any such rights will provide a sustainable competitive advantage. Competitors may claim that we have infringed their current or future intellectual property rights. We may not prevail in any future intellectual property infringement litigation given the complex technical issues and inherent uncertainties in litigation. Any claims, with or without merit, could be time-consuming and distracting to management, result in costly litigation, cause product shipment delays, or require us to enter into royalty or licensing agreements. Additionally, in the event an intellectual property claim against us is successful, we might not be able to obtain a license on acceptable terms or license a substitute technology or redesign our products to avoid infringement. Any of the foregoing adverse events could seriously harm our business, financial condition and results of operations.
Product Liability Claims Against Us Could Be Costly and Could Harm Our Reputation.
The sale of dental and medical products involves the inherent risk of product liability claims against us. While we currently maintain product liability insurance coverage in an amount that we believe is adequate for
our level of sales, this insurance is expensive, is subject to various coverage exclusions and may not be obtainable in the future on terms acceptable to us, or at all. We do not know whether claims against us, if any, with respect to our products will be successfully defended or whether our insurance will be sufficient to cover liabilities resulting from such claims.
Rapid Changes in Technology Could Harm the Demand for Our Products or Result in Significant Additional Costs.
The markets in which our laser products compete are subject to rapid technological change, evolving industry standards, changes in the regulatory environment, frequent new device and pharmaceutical introductions and evolving dental and surgical techniques. These changes could render our products noncompetitive or obsolete. The success of our existing and future products is dependent on the differentiation of our products from those of our competitors, the timely introduction of new products and the perceived benefit to the customer in terms of patient service and return on investment. The process of developing new medical devices is inherently complex and requires regulatory approvals or clearances that can be expensive, time-consuming and uncertain. We have in the past experienced delays in product development. We cannot assure you that we will successfully identify new product opportunities, be financially or otherwise capable of the research and development to bring new products to market in a timely manner or that product and technologies developed by others will not render our products obsolete.
We May Not Be Able to Compete Successfully Against Our Current and Future Competitors.
Our products compete with those of a number of foreign and domestic companies, including those companies that market traditional dental products such as dental drills, as well as other companies that market laser technologies in the dental and medical markets that we address. Some of our competitors have greater financial, technical, marketing or other resources than us. This may allow them to respond more quickly to new or emerging technologies and to devote greater resources to the development and introduction of enhanced products than we can. In addition, the rapid technological changes occurring in the healthcare industry are expected to lead to the entry of new competitors, especially as dental and medical lasers gain increasing market acceptance. Our ability to anticipate technological changes and to introduce enhanced products on a timely basis will be a significant factor in our ability to grow and remain competitive. New competitors or technology changes in laser products and methods could cause commoditization of such products, require price discounting or otherwise adversely affect our gross margins.
Changes in Government Regulation or the Inability to Obtain Necessary Government Approvals Could Harm Our Business.
Our products are subject to extensive government regulation, both in the United States and other countries. To clinically test, manufacture and market products for human diagnostic and therapeutic use, we must comply with regulations and safety standards set by the U.S. Food and Drug Administration and comparable state and foreign agencies. Generally, products must meet regulatory standards as safe and effective for their intended use prior to being marketed for human applications. The clearance process is expensive, time-consuming and uncertain. The failure to receive requisite approvals for the use of our products or processes, or significant delays in obtaining such approvals, could prevent us from developing, manufacturing and marketing products and services necessary for us to remain competitive.
If Our Customers Cannot Obtain Third Party Reimbursement for Their Use of Our Products, They May Be Less Inclined to Purchase Our Products.
Our products are generally purchased by dental or medical professionals who then bill various third party payors, such as government programs or private insurance plans, for the procedures conducted using these
products. In the United States third party payors review and frequently challenge the prices charged for medical services. In many foreign countries, the prices are predetermined through government regulation. Payors may deny coverage and reimbursement if they determine that the procedure was not medically necessary (for example, cosmetic) or that the device used in the procedure was investigational. We believe that most of the procedures being performed with our current products generally have been reimbursed, with the exception of cosmetic applications such as tooth whitening. The inability to obtain reimbursement for services using our products could deter dentists and physicians from purchasing or using our products. We cannot predict the effect of future healthcare reforms or changes in financing for health and dental plans. Any such changes could have an adverse effect on the ability of a dental or medical professional to generate a return on investment using our current or future products. Such changes would act as disincentives for capital investments by dental and medical professionals and could have an adverse effect on our business, financial condition and results of operations.
The Failure to Attract and Retain Key Personnel Could Adversely Affect Our Business.
Our future success depends in part on the continued service of certain key personnel, including Jeffrey W. Jones, our Chief Executive Officer, Edson J. Rood, our Chief Financial Officer, Ioana Rizoiu, our Vice President of Clinical Research, and Keith Bateman, our Vice President of Global Sales. We do not have employment agreements with any of our key employees, other than with Mr. Jones, whose employment agreement was renewed in January 2002 for an additional two-year term.
Our success will also depend in large part on our ability to continue to attract, retain and motivate qualified engineering and other highly skilled technical personnel. Competition for employees, particularly development engineers, is intense. We may not be able to continue to attract and retain sufficient numbers of such highly skilled employees. Our inability to attract and retain additional key employees or the loss of one or more of our current key employees could adversely affect our business, financial condition and results of operations.
Potential Future Acquisitions Could Have Unintended Negative Consequences Which Could Harm Our Business and Cause Our Stock Price to Decline.
We may consider pursuing acquisitions of businesses, products or technologies in the future as a part of our growth strategy. Acquisitions could require significant capital infusions and could involve many risks, including but not limited to the following:
| • | | We may encounter difficulties in assimilating and integrating the operations, products and workforce of the acquired companies; |
| • | | Acquisitions may materially and adversely affect our results of operations because they may require large one-time charges or could result in increased debt or contingent liabilities, adverse tax consequences, substantial depreciation or deferred compensation charges, or the amortization of amounts related to deferred compensation, goodwill and other intangible assets; |
| • | | Acquisitions may be dilutive to our existing stockholders; |
| • | | Acquisitions may disrupt our ongoing business and distract our management; and |
| • | | Key personnel of the acquired company may decide not to work for us. |
We cannot assure you that we will be able to identify or consummate any future acquisitions on acceptable terms, or at all. In the event we do pursue any acquisitions, it is possible that we may not realize the anticipated benefits from such acquisitions.
We May Not Be Able to Continue or Increase Our Net Income in the Future, Which May Cause the Trading Price of Our Common Stock to Decline.
We may not be able to continue to achieve net income. Prior to the third and fourth quarters of 2001, we had not reached the break-even point as we transitioned from our research and development phase and began
commercializing our technology. Even if we continue to achieve net income, we may not be able to increase net income on a quarterly or annual basis in the future. Our ability to achieve sustained or increased net income is, in turn, dependent on many of the other risk factors identified in this report below. If we are unable to continue or increase our net income in the future, we may not be able to successfully operate our business and our stock price may decline.
Our Common Stock Price Has Been Volatile, Which Could Result in Substantial Losses for Individual Stockholders.
Our common stock recently was listed and began trading on the Nasdaq National Market and has only limited daily trading volume. Our common stock previously traded on the Nasdaq SmallCap Market. The trading price of our common stock has been and may continue to be volatile. The market for technology companies, in particular, has, from time to time, experienced extreme volatility that often has been unrelated to the operating performance of particular companies. These broad market and industry fluctuations may significantly affect the trading price of our common stock, regardless of our actual operating performance. For example, the closing per share sale price of our common stock fluctuated from $6.80 to $1.53 during 2001 despite steady improvement in our financial performance. On August 9, 2001, the closing sale price of our common stock declined 12% from $5.87 per share on volume of approximately 900,000 shares, absent any news about or announcements by us. The trading price of our common stock could be affected by a number of factors, including, but not limited to, changes in expectations of our future performance, changes in estimates by securities analysts (or failure to meet such estimates), quarterly fluctuations in our revenue and financial results and a variety of risk factors, including the ones described elsewhere in this report. Periods of volatility in the market price of a company’s securities sometimes result in securities class action litigation. If this were to happen to us, such litigation would be expensive and would divert management’s attention. In addition, with only a limited public market for our stock, it would be difficult to sell a significant amount of our stock, which could cause a significant decline in the trading price of our stock. If our stock price drops below $3.00 per share for an extended period of time or we are otherwise unable to satisfy the continued listing requirements of the Nasdaq National Market, our shares could be delisted from the Nasdaq National Market and the marketability, liquidity and price of our common stock would be adversely affected.
The Common Stock Sold in This Offering Will Increase the Supply Of Our Common Stock On the Public Market, Which May Cause Our Stock Price to Decline.
The sale into the public market of the common stock to be sold in this offering could materially and adversely affect the market price of our common stock. Most of the shares of our common stock are eligible for immediate and unrestricted sale in the public market at any time. Once the registration statement of which this prospectus forms a part is declared effective, all shares of common stock to be sold in this offering will be eligible for immediate and unrestricted resale into the public market. The presence of these additional shares of common stock in the public market may further depress our stock price.
Investors in This Offering Will Suffer Immediate Dilution.
As of March 31, 2002, we had a net tangible book value of approximately $0.12 per share of common stock. Net tangible book value per share is equal to our total tangible assets minus total liabilities divided by the number of shares of common stock outstanding. Our net tangible book value per share is substantially less than the current market price per share of our common stock. If you pay more than the net tangible book value per share for common stock in this offering, you will suffer immediate and substantial dilution.
We May Issue Stock at a Discount to the Current Market Price, Which Would Dilute Our Existing Stockholders.
In order to raise the funds we require to execute our business plan and fund operations generally, we may continue to issue stock at a discount to the current market price. Transactions of that kind would result in dilution to our existing stockholders.
Future Sales of Our Common Stock Could Affect the Stock Price.
If our stockholders sell substantial amounts of our common stock, including shares issued on the exercise of options and warrants, in the public market, the market price of our common stock could fall. These sales also might make it more difficult for us to sell equity or equity-related securities in the future at a time and price that we deem appropriate. As of May 31, 2002, we had 20,027,948 shares of common stock outstanding. All of these shares, other than shares held by affiliates, are freely tradable.
We Have Adopted Anti-Takeover Defenses That Could Delay or Prevent an Acquisition of Our Company and May Affect the Price of Our Common Stock.
Certain provisions of our certificate of incorporation and stockholder rights plan could make it difficult for a third party to acquire us, even though an acquisition might be beneficial to our stockholders. These provisions could limit the price that investors might be willing to pay in the future for shares of our common stock.
Our certificate of incorporation authorizes the issuance of up to 1,000,000 shares of “blank check” preferred stock, which will have terms as may be determined from time to time by our Board of Directors. Accordingly, our Board of Directors may, without obtaining stockholder approval, issue preferred stock with terms which could have preference over and adversely affect the rights of the holders of common stock. This issuance may make it more difficult for a third party to acquire a majority of our outstanding voting stock. We are also subject to the Delaware anti-takeover laws which may prevent, delay or impede a merger or takeover of our company, and we have not opted out of the provisions of such laws through either our certificate of incorporation or our bylaws.
In December 1998, we adopted a stockholder rights plan pursuant to which one preferred stock purchase right is distributed to our stockholders for each share of our common stock held by them. In the event that a third party acquires 15% or more of our outstanding common stock, the holders of these rights will be able to purchase the underlying junior participating preferred stock as a way to discourage, delay or prevent a change in control of our company. The mere existence of a stockholder rights plan often delays or makes a merger, tender offer or proxy contest more difficult. The existence of these features could prevent others from seeking to acquire shares of our common stock in transactions at premium prices.
FORWARD-LOOKING STATEMENTS This prospectus, together with all other information included in or incorporated by reference into this prospectus, contains forward-looking statements that are not historical facts but rather are based upon our current expectations, estimates, assumptions and projections about our industry and reflect management’s beliefs based upon information available to us at the time of this prospectus. Words such as “anticipates,” “expects,” “intends,” “plans,” “believes,” “seeks,” “estimates,” “may,” “will,” and variations of these words or similar expressions are intended to identify forward-looking statements. These forward-looking statements are not guarantees of future performance and are subject to risks, uncertainties, assumptions and other factors that are difficult to predict and could cause our actual results to differ materially and adversely from those expressed in any forward-looking statements. These risks and uncertainties include those described under “Risk Factors” and elsewhere in this prospectus, together with all other information included or incorporated by reference into this prospectus, and include but are not limited to the following:
| • | | Uncertainties relating to worldwide political stability, general economic conditions and trade policies; |
| • | | Uncertainties relating to government and regulatory policies; |
| • | | Unforeseen technological developments by competitors; |
| • | | The entry of new, well-capitalized competitors; |
| • | | The availability and pricing of materials used in the manufacture of our products; |
| • | | Uncertainties relating to the development, ownership and enforcement of intellectual property rights; |
| • | | Adverse changes in the financing of commercial health and dental plans; |
| • | | Adverse changes in the financial markets affecting the availability and cost of capital; |
| • | | The impact of natural disasters, including a major earthquake, on our operations; or |
| • | | The ability to attract and retain qualified personnel to grow and compete effectively. |
Forward-looking statements that were true at the time made may ultimately prove to be incorrect or false. Readers are cautioned not to place undue reliance on forward-looking statements, which reflect our management’s view only as of the date of this prospectus. We undertake no obligation to revise or update publicly any forward-looking statements for any reason.
The information contained in this prospectus is not a complete description of our business or the risks associated with an investment in our common stock. We urge you to carefully review and consider the various disclosures made by us in our reports and other filings with the Securities and Exchange Commission.
WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and special reports, proxy statements and other information with the Securities and Exchange Commission. You may read and copy any document we file with the SEC at the SEC’s Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the Public Reference Room. Our SEC filings are also available to the public at the SEC’s web site athttp://www.sec.gov.
This prospectus is part of a registration statement on Form S-3 that we filed with the SEC. Pursuant to the SEC rules, this prospectus, which forms a part of the registration statement, does not contain all of the information in the registration statement. You may read or obtain a copy of the registration statement from the SEC in the manner described above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The SEC allows us to incorporate by reference into this prospectus the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. The documents we incorporate by reference are:
1. Our Annual Report on Form 10-K for the fiscal year ended December 31, 2001 filed with the SEC on April 1, 2002;
2. Our Quarterly Report on Form 10-Q for the quarter ended March 31, 1998;
(c) The Company's definitive2002 filed with the SEC on May 15, 2002;
3. Our Definitive Proxy Statement datedfiled with the SEC on April 20, 1998
(provided, however, that the information referred to22, 2002 in Item 402(a)(8)connection with our 2002 Annual Meeting of Regulation S-KStockholders held on May 23, 2002;
4. The description of the Commission shall not be deemed incorporated by reference
herein);
(d) The section of the Company'sour common stock contained in our Registration Statement on Form S-1,
declared effective8-A filed with the SEC on October 30, 1991, including any amendment or report filed for the purpose of updating such description; and
5. The description of our preferred stock purchase rights contained in our Registration Statement on Form 8-A filed with the SEC on December 29, 1998, including any amendment or report filed for the purpose of updating such description.
In addition, we incorporate by
reference all reports and other documents that we file with the
Securities and Exchange Commission on August 6, 1997,
entitled "Description of Securities".
All documents filed by the Company pursuant toSEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act
subsequent toof 1934, as amended, after the date of this
Prospectusprospectus and prior to the termination of this
Offering shall alsooffering, and all such reports and documents will be deemed to be incorporated by reference
intoin this
Prospectus,prospectus and to be a part
hereof,of this prospectus from the
datesdate of filing of such
reports and documents. Any statement contained
herein or in a document
all
11
or a portion of which is incorporated or deemed to be incorporated by reference hereinin this prospectus shall be deemed to be modified or superseded for purposes of this Prospectusprospectus to the extent that a statement contained hereinin this prospectus or in any other subsequently filed document thatwhich also is or is deemed to be incorporated by reference hereinin this prospectus modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus.
The Companyprospectus. We will provide without charge to each person to whom this Prospectusprospectus is delivered, including any beneficial owner, upon the written or oral request of any such person, a copy of any andor all of the foregoing documents which are incorporated herein by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference in such documents). Written requeststhis prospectus but not delivered with the prospectus. Requests for copies of these documents should be directedsubmitted in writing to Investor Relations, at BioLase Technology, Inc., 981 Calle Amanecer, San Clemente, California 92673, Attention: Corporate
Secretary. Telephone requests shouldor by telephone at (949) 361-1200.
The following table sets forth the names of the selling stockholders, the number of shares being registered for sale as of the date of this prospectus and the number of shares of common stock known by us to be
directedbeneficially owned by each of the selling stockholders as of May 31, 2002. We are unable to
(949) 361-1200.
12
ADDITIONAL INFORMATION
Adetermine the exact number of shares that actually will be sold because the selling stockholders may sell all or some of the shares and because there currently are no agreements, arrangements or understandings with respect to the sale of any of the shares. The following table assumes that the selling stockholders will sell all of the shares being offered for their account by this prospectus. The shares offered by this prospectus may be offered from time to time by the selling stockholders. The selling stockholders are not making any representation that any shares covered by this prospectus will or will not be offered for sale. The selling stockholders reserve the right to accept or reject, in whole or in part, any proposed sale of shares. The selling stockholders also may offer and sell less than the number of shares indicated. | | | Number of Shares Beneficially Owned Prior to Offering
| | Number of Shares Being Offered in Offering
| | Beneficially Owned After Offering
| |
Name of Selling Stockholder
| | | | Number of Shares
| | Percent of Outstanding Shares
| |
| CBG Compagnie Bancaire Geneve(1) | | 480,000 | | 160,000 | | 320,000 | | 1.6 | % |
| Corner Bank Ltd.(2) | | 360,000 | | 360,000 | | — | | — | |
| Corner Banque S.A.(3) | | 105,000 | | 105,000 | | — | | — | |
| GEM Holdings Corp.(4) | | 566,400 | | 256,600 | | 309,800 | | 1.5 | % |
| Triglova Finance S.A.(5) | | 62,500 | | 62,500 | | — | | — | |
| | |
| |
| |
| |
|
|
| Total | | 1,573,900 | | 944,100 | | 629,800 | | 3.0 | % |
| | |
| |
| |
| |
|
|
| (1) | | Includes 160,000 shares of common stock subject to warrants which are immediately exercisable. |
| (2) | | Includes 260,000 shares of common stock subject to warrants which are immediately exercisable. |
| (3) | | Includes 40,000 shares of common stock subject to warrants which are immediately exercisable. |
| (4) | | Includes 200,000 shares of common stock subject to warrants which are immediately exercisable. |
| (5) | | Includes 62,500 shares of common stock subject to warrants which are immediately exercisable for our common stock at a price per share of $2.50 and which expire in September 2002. The warrants were originally issued to Eurocapital Limited, which acted as our agent for the private placement completed in March 2000, but were subsequently transferred by Eurocapital Limited to Triglova Finance S.A. in May 2001. Our Chairman of the Board, Federico Pignatelli, has in the past acted as an agent of Eurocapital Limited, but has no current relationship, financial or otherwise, with Eurocapital Limited. Mr. Pignatelli disclaims beneficial ownership of the shares that were transferred by Eurocapital Limited and that are being offered by Triglova Finance S.A. |
The information provided above is based upon information provided by each respective selling stockholder and public documents filed with the SEC and is not necessarily indicative of beneficial ownership for any other purpose. The number of shares of common stock beneficially owned and used to calculate the percentage beneficial ownership of each listed stockholder includes the shares of common stock underlying warrants or preferred stock held by such stockholder that are exercisable or convertible within 60 days of May 31, 2002. The term “selling stockholders” includes the stockholders listed below and their transferees, assignees, pledgees, donees or other successors. The percent of beneficial ownership for each stockholder is based on 20,027,948 shares of our common stock outstanding as of May 31, 2002. Except as indicated in this prospectus, we are not aware of any material relationship between us and any selling stockholder within the past three years other than as a result of the ownership of the selling stockholders’ shares.
CBG Compagnie Bancaire Geneve, Corner Bank Ltd. and Corner Banque S.A. acquired their beneficial ownership of 625,000 shares offered by this prospectus, in connection with a private placement completed in
March 2000, in which we issued and sold 125 units to them. Each unit was sold at a price per unit of $21,775 and consisted of 10,000 shares of our common stock and an immediately exercisable redeemable warrant that expires in September 2002, to purchase 5,000 shares of our common stock at a price per share of $2.50.
We may redeem, at a cash price per warrant of $0.01, all of the warrants held by CBG Compagnie Bancaire Geneve, Corner Bank Ltd., Corner Banque S.A. and Triglova Finance S.A., provided that the closing price per share of our common stock has equaled or exceeded $5.00 for the 20 trading days preceding the call for redemption. In March 2002, Corner Bank Ltd. and Corner Banque S.A. partially exercised their warrants and purchased 100,000 shares and 65,000 shares, respectively, of our common stock at a price per share of $2.50.
In connection with the March 2000 private placement of shares of our common stock including warrants to purchase shares of our common stock, we agreed to prepare and file with the Securities and Exchange Commission a registration statement on Form S-3, (the "Registration Statement")
relatingof which this prospectus forms a part, for the purpose of registering such shares for resale from time to time by the selling stockholders. We also agreed to prepare and file any amendments and supplements to the securities offered hereby has been filedregistration statement as may be necessary to keep the registration statement continuously effective in order to permit this prospectus to be usable by the Company withselling stockholders until the Commission. This Prospectus does not containearlier of the date when the selling stockholders have sold all of the information set forthplacement shares or two years from the date of the last exercise of a warrant issued in the Registration Statementplacement.
Beginning in December 1999, we have entered into extension agreements with GEM Holdings Corp., pursuant to which GEM has agreed to continue to guarantee all obligations due under our bank credit facility. Pursuant to these agreements, we have issued three warrants to GEM, one to purchase an aggregate of 50,000 shares of our common stock at an exercise price per share of $3.00 that expires in December 2002, another to purchase an aggregate of 50,000 shares of our common stock at an exercise price per share of $3.00 that expires in May 2003 and another to purchase an aggregate of 100,000 shares of our common stock at an exercise price per share of $2.00 that expires in December 2003. Pursuant to our agreements with GEM, we granted “piggyback” registration rights that obligate us to include the shares beneficially owned by GEM in any registration statement that we file with the SEC on which it would be appropriate to register shares for resale, until such time as the shares held by GEM may be sold pursuant to exemptions from the registration requirements of the Securities Act.
This prospectus also covers any additional shares of common stock which become issuable in connection with the shares being registered by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of our outstanding shares of common stock. In addition, this prospectus covers the preferred stock purchase rights which currently trade with the common stock and entitle the holder to purchase additional shares of common stock under certain circumstances.
The shares of common stock offered by this prospectus will be sold by the selling stockholders, and the exhibits thereto. Statements containedselling stockholders will receive all of the proceeds from sales of those shares. Accordingly, we will not receive any of the proceeds from sales of the shares offered by this prospectus. However, we could receive proceeds of up to $1,806,250 if the warrants are exercised by the selling stockholders, and those proceeds will be used for our general corporate purposes. See “Selling Stockholders” on pages 12-13.
We are registering all 944,100 shares of common stock (and associated purchase rights) covered by this prospectus on behalf of the selling stockholders. This amount includes 221,600 shares of common stock and
722,500 shares of common stock issuable upon exercise of immediately exercisable warrants to purchase common stock, acquired by certain selling stockholders in March 2000 pursuant to a private placement and by the remaining selling stockholder pursuant to certain service agreements with us. We will not receive any of the proceeds from sales of the shares by the selling stockholders. However, we will receive proceeds from the exercise of the warrants and those proceeds will be used for our general corporate purposes.
The selling stockholders named in this Prospectus as to the contents of any contractprospectus, or pledgees, donees, transferees or other document referred to
are not necessarily complete and in each instance reference is made tosuccessors-in-interest selling shares received from the copy
of such contractselling stockholders as a gift, partnership distribution or other document filed as an Exhibitnon-sale related transfer after the date of this prospectus may sell these shares from time to the Registration
Statement, each such statement being qualifiedtime. The selling stockholders will act independently of us in all respects by such
reference. For further informationmaking decisions with respect to the Companytiming, manner and size of each sale. The sales may be made on one or more exchanges or in the Common
Stock being offered hereby, reference is madeover-the-counter market or otherwise, at prices and at terms then prevailing or at prices related to the Registration Statement and
Exhibits. A copythen current market price or in negotiated transactions. The selling stockholders may effect such transactions by selling the shares to or through broker-dealers. The shares may be sold by one or more of, or a combination of, the Registration Statementfollowing:
| • | | a block trade in which the broker-dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
| • | | purchases by a broker-dealer as principal and resale by such broker-dealer for its account under this prospectus; |
| • | | an exchange distribution in accordance with the rules of such exchange; |
| • | | ordinary brokerage transactions and transactions in which the broker solicits purchasers; or |
| • | | privately negotiated transactions. |
To the extent required, this prospectus may be inspectedamended or supplemented from time to time to describe a specific plan of distribution. In effecting sales, broker-dealers engaged by anyone
without charge at the Commission's principal office located at 450 Fifth Street,
N.W., Washington, D.C. 20549,selling stockholders may arrange for other broker-dealers to participate in such resales.
The selling stockholders may enter into hedging transactions with broker-dealers in connection with distributions of the Pacific Regional Office located at 5670
Wilshire Boulevard, 11th Floor, Los Angeles, California 90036-3648,shares or otherwise. In such transactions, broker-dealers may engage in short sales of the New York
Regional Office located at 7 World Trade Center, 13th Floor, New York, New York
10048,shares in the course of hedging the positions they assume with the selling stockholders. The selling stockholders also may sell shares short and redeliver the Chicago Regional Office located at Northwestern Atrium Center,
500 West Madison Street, Chicago, Illinois 60661-2511, and copiesshares to close out such short positions. The selling stockholders may enter into option or other transactions with broker-dealers which require the delivery to the broker-dealer of allthe shares. The broker-dealer may then resell or any
part thereofotherwise transfer such shares under this prospectus. The selling stockholders also may be obtainedloan or pledge the shares to a broker-dealer. The broker-dealer may sell the shares so loaned, or upon a default the broker-dealer may sell the pledged shares under this prospectus.
Broker-dealers or agents may receive compensation in the form of commissions, discounts or concessions from the
Public Reference Branchselling stockholders. Broker-dealers or agents may also receive compensation from the purchasers of the
Commission
upon the payment of certain fees prescribed by the Commission. The Commission
also maintains a World Wide Web site on the Internet at http:\\www.sec.gov that
contains reports, proxy and information statements and other information
regarding registrants, including the Company, that file electronically with the
Commission.
13
No dealer, salesperson or any other person has been authorized to give any
informationshares for whom they act as agents or to make any representations not containedwhom they sell as principals, or both. Compensation as to a particular broker-dealer might be in this Prospectusexcess of customary commissions and if given or made, such information or representations must notwill be relied upon as
having been authorized by the Company or the Selling Stockholders. This
Prospectus does not constitute an offer of any securities other than thosein amounts to which it relates or an offer to sell, or a solicitation of an offer to buy, to
any person in any jurisdiction where such an offer or solicitation would be unlawful. Neither the delivery of this Prospectus nor any sale made hereunder
shall, under any circumstances, create any implication that the information
contained herein is correct as of any time subsequent to the date hereof.
-------------
TABLE OF CONTENTS
Page
----
Available Information..................................................... 2
Prospectus Summary........................................................ 2
The Company............................................................... 2
The Offering.............................................................. 3
Risk Factors.............................................................. 3
Use of Proceeds........................................................... 8
Principal and Selling Stockholders........................................ 9
Plan of Distribution...................................................... 10
Legal Matters............................................................. 11
Experts................................................................... 11
Incorporation by Reference................................................ 11
Additional Information.................................................... 13
2,355,600 Shares
BIOLASE TECHNOLOGY, INC.
Common Stock
PROSPECTUS
July ___, 1998
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
- ------- -------------------------------------------
Set forth below are the expenses estimatednegotiated in connection with the issuancesale. Broker-dealers or agents and distributionany other participating broker-dealers or the selling stockholders may be deemed to be “underwriters” within the meaning of the Registrant's securities, other than underwriting
commissions and discounts. Except for the SEC registration fee, all expenses
are estimated.
SEC registration fee $ 3,307.13
Printing and engraving expenses 2,000.00
Accounting fees and expenses 5,000.00
Legal fees and expenses 8,000.00
Transfer Agent's fees and expenses 1,000.00
Miscellaneous expenses 692.87
----------
Total $20,000.00
==========
Item 15. IndemnificationSection 2(11) of Directors and Officers.
- ------- -----------------------------------------
The Certificate of Incorporation and Bylaws of the Registrant indemnify its
officers and directors to the fullest extent permitted by Section 145 of the
Delaware General Corporation Law and applicable law. Section 145 of the
Delaware General Corporation Law makes provision for the indemnification of
officers, directors and other corporate agents in terms sufficiently broad to
indemnify such persons, under certain circumstances, for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933, as amended, (the "Securities Act").
Item 16. Exhibitsin connection with sales of the shares. Accordingly, any such commission, discount or concession received by them and Financial Statement Schedules.
- ------- ------------------------------------------
(a) Exhibitsany profit on the resale of the shares purchased by them may be deemed to be underwriting discounts or commissions under the Securities Act. Because the selling stockholders may be deemed to be “underwriters” within the meaning of Section 2(11) of the Securities Act, the selling stockholders will be subject to the prospectus delivery requirements of the Securities Act. In addition, any securities covered by this prospectus which qualify for sale under Rule 144 promulgated under the Securities Act may be sold under Rule 144 rather than under this prospectus. The following exhibits areselling stockholders have advised us that they have not entered into any agreements, understandings or arrangements with any
underwriters or broker-dealers regarding the sale of their securities. There is no underwriter or coordinating broker acting in connection with the proposed sale of shares by the selling stockholders.
The shares will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states the shares may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Securities Exchange Act of 1934, as amended, any person engaged in the distribution of the shares may not engage in market-making activities with respect to our common stock during certain restricted periods. In addition, each selling stockholder will be subject to applicable provisions of the Securities Exchange Act and the associated rules and regulations under the Securities Exchange Act, including Regulation M, which provisions may limit the timing of purchases and sales of shares of our common stock by the selling stockholders. We will make copies of this prospectus available to the selling stockholders and have informed them of the need for delivery of copies of this prospectus to purchasers at or prior to the time of any sale of the shares.
We will file a supplement to this prospectus, if required, pursuant to Rule 424(b) under the Securities Act upon being filednotified by a selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of shares through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer. Such supplement will disclose:
| • | | the name of each such selling stockholder and of the participating broker-dealer(s), |
| • | | the number of shares involved, |
| • | | the price at which such shares were sold, |
| • | | the commissions paid or discounts or concessions allowed to such broker-dealer(s), where applicable, |
| • | | that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus, and |
| • | | other facts material to the transaction. |
In addition, upon being notified by a selling stockholder that a donee or pledgee intends to sell more than 500 shares, we will file a supplement to this Registration Statementprospectus.
We will bear all costs, expenses and fees in connection with the registration of the shares. The selling stockholders will bear all commissions and discounts, if any, attributable to their respective sales of the shares. The selling stockholders may agree to indemnify any broker-dealer or areagent that participates in transactions involving sales of the shares against certain liabilities, including liabilities arising under the Securities Act.
The validity of the common stock offered in this prospectus and certain other legal matters will be passed upon for us by Brobeck, Phleger & Harrison LLP, Irvine, California.
Our financial statements as of December 31, 2001 and 2000 and for each of the years in the three year period ended December 31, 2001 incorporated by reference therein in accordancethis prospectus and related registration statement have been so included in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the various costs and expenses to be paid by the Registrant with respect to the sale and distribution of the securities being registered. All of the amounts shown are estimates except for the SEC registration fee. In addition, the Registrant may be charged additional listing fees by the Nasdaq National Market upon issuance of the shares being offered by this prospectus.
| | | | |
| SEC Registration Fee | | $ | 436.02 |
| Printing Expenses | | | 6,000.00 |
| Legal Fees and Expenses | | | 10,500.00 |
| Accounting Fees and Expenses | | | 5,000.00 |
| Transfer Agent Fees and Expenses | | | 700.00 |
| | |
|
|
| Total | | $ | 22,636.02 |
| | |
|
|
The Registrant will bear all costs, expenses and fees in connection with the designated footnote
references.
Exhibit No. Exhibit
---------- -------
3. Articlesregistration of Incorporationthe shares. The selling stockholders will bear all commissions and Bylaws
3.1 Restateddiscounts, if any, attributable to the sales of the shares.
Item 15. Indemnification of Directors and Officers
The Registrant’s Certificate of Incorporation, as Amended. (2)
3.2amended, provides that the Registrant’s directors will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except for liability for (i) any breach of their duty of loyalty to the Registrant or its stockholders, (ii) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the General Corporation Law of the State of Delaware (the “Delaware Law”), or (iv) any transaction from which the director derives an improper personal benefit.
Article X of the Registrant’s Amended and Restated Bylaws. (3)
4. Instruments DefiningBylaws provides that the RightsRegistrant will indemnify any director or officer, or former director or officer, who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, to the fullest extent authorized by the Delaware Law, against all costs, charges, expenses, liabilities and losses (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered in connection with such action, suit or proceeding. The Registrant also will indemnify any such director or officer, or any such former director or officer, against expenses incurred in defending any such action, suit or proceeding in advance of Holders, including Indentures
4.3 Certificateits final disposition, provided that, if required by the Delaware Law, the payment of Designations, Preferences and Rightssuch expenses will be made only upon delivery to the Registrant of Series A
6% Redeemable Cumulative Convertible Preferred Stockan undertaking, by or on behalf of BioLase
Technology, Inc. (5)
4.4 Formsuch director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified.
Article X of Participant Stock Purchase Warrant Certificate. (6)
4.5 Form of Agent Stock Purchase Warrant Certificate. (6)
5. Opinions of Counsel
5.1 Opinion of Foley & Lardner.
10. Material Contracts
10.1 Premises Lease for 981 Calle Amanecer, San Clemente, California.
(1)
10.2 1990 Stock Option Plan. (1)
10.9 1992 Stock Option Plan. (1)
10.18the Registrant’s Amended and Restated 1993 Stock Option Plan. (3)
10.18a First AmendmentBylaws further provides that in the event a director or officer has to bring suit against the Registrant for indemnification and is successful, the Registrant will pay such director’s or officer’s expenses of prosecuting such claim; that indemnification provided for by the Amended and Restated 1993 Stock Option Plan.
(4)
10.19 AmendedBylaws shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; that the Registrant may purchase and Restated 1993 Stock Compensation Plan. (2)
10.20 Formmaintain insurance on behalf of Stock Option Agreementa director or officer against any expense, liability or loss, whether or not the Registrant would have the power to indemnify such director or officer against such expense, liability or loss under the 1993 Stock Option Plan.
(2)
10.26* Distribution Agreement betweenDelaware Law; and that to the Companyextent any director or officer is by reason of such position a witness in any action, suit or proceeding, the Registrant shall indemnify
II-1
him or her against all costs and Orbis High Tech
Dental GmbH. (6)
21. Subsidiaries (1)
23.2 Consentexpenses actually and reasonably incurred by him or her in connection therewith.
The Registrant’s employment agreement with its President and Chief Executive Officer, Jeffrey W. Jones, provides that the Registrant will, to the maximum extent permitted under the Delaware Law, indemnify Mr. Jones against any expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding, whether civil, criminal, administrative or investigative, threatened or initiated against Mr. Jones by reason of Coopers & Lybrand L.L.P.
23.3 Consentthe fact that he was serving as a director or officer.
Section 145 of Foley & Lardner (containedthe Delaware Law provides that a Delaware corporation has the power to indemnify its directors and officers in Exhibit 5.1)
- --------------
* Portionscertain circumstances.
Subsection (a) of this AgreementSection 145 of the Delaware Law empowers a corporation to indemnify any director or officer, or former director or officer, who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding provided that such director or officer acted in good faith and in a manner such director or officer reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, provided that such director or officer had no reasonable cause to believe his or her conduct was unlawful.
Subsection (b) of Section 145 of the Delaware Law empowers a corporation to indemnify any director or officer, or former director or officer, who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of such action or suit, provided that such director or officer acted in good faith and in a manner such director or officer reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which such director or officer shall have been omitted pursuantadjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine that despite the adjudication of liability, but in view of all the circumstances of the case, such director or officer is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 145 of the Delaware Law further provides that to the extent a confidentiality request filed withdirector or officer of a corporation has been successful in the Securitiesdefense of any action, suit or proceeding referred to in subsections (a) and Exchange
Commission.
(1) Filed with(b) or in the Company's Registration Statementdefense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and that the corporation shall have power to purchase and maintain insurance on Form S-1 dated
October 9, 1992behalf of a director or officer of the corporation against any liability asserted against him or her or incurred by him or her in any such capacity or arising out of his or her status as such whether or not the corporation would have the power to indemnify him or her against such liabilities under Section 145.
The Registrant maintains directors’ and incorporated by reference.
(2) Filed with the Company's 1993 Annual Report on Form 10-K dated April
14, 1994officers’ liability insurance covering its directors and incorporated by reference.
(3) Filed with the Company's 1995 Second Quarter Report on Form 10-QSB
dated September 15, 1995 and incorporated by reference.
(4) Filed with the Company's 1995 Annual Report on Form 10-KSB dated May 6,
1996 and incorporated by reference.
(5) Filed with the Company's 1996 Third Quarter Report on Form 10-QSB dated
November 19, 1996 and incorporated by reference.
(6) Filed with the Company's 1996 Annual Report on Form 10-KSB dated April
11, 1997 and incorporated by reference.
officers.
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Item 16. Exhibits
Exhibit Number
| | |
|
| 4.1 | | Specimen of common stock certificate. |
|
| 4.2 | | Form of Common Stock Purchase Warrant for private placement investors. |
|
| 4.3 | | Form of Common Stock Purchase Warrant for GEM Holdings Corp. |
|
| 4.4 | | Form of rights certificate for preferred stock purchase rights (incorporated by reference to Exhibit A to Exhibit 1 to the Registrant’s Registration Statement on Form 8-A as filed with the SEC on December 29, 1998). |
|
| 4.5 | | Restated Certificate of Incorporation, as Amended (incorporated by reference to the Registrant’s Annual Report on Form 10-K filed with the SEC on April 14, 1994). |
|
| 4.6 | | Amended and Restated Bylaws (incorporated by reference to the Registrant’s Quarterly Report on Form 10-QSB filed with the SEC on September 15, 1995). |
|
| 5.1 | | Opinion of Brobeck, Phleger & Harrison LLP. |
|
| 23.1 | | Consent of Independent Accountants. |
|
| 23.2 | | Consent of Brobeck, Phleger & Harrison LLP (included in Exhibit 5.1). |
|
| 24.1 | | Power of Attorney (included in signature page). |
Item 17. Undertakings.
- ------- ------------
Undertakings
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;
(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 hereof) 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 Securities and Exchange 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
(iii) To include any material information with respect to the plan of distribution not previously disclosed in thethis registration statement or any material change to such information in this registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if 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 SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein,herein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.
II-1
II-3
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act each filing of the Registrant's annual reportRegistrant’s Annual Report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (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 theinto 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 initialbona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the
Certificate of Incorporation, the Delaware General
Corporation Lawforegoing provisions, or otherwise, the
RegistrationRegistrant has been
informedadvised that in the opinion of the
commissionSEC such indemnification
asis 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,
hereunder, the Registrant will, unless in the opinion of its counsel the matter has
already been settled by controlling precedent, submit to a court of appropriate jurisdiction the question
of whether such indemnification by it
is against public policy as expressed in the
Securities Act and
shallwill be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes:
(1) That for purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424B(b)(1) or (4) or 497(h)
under the Act, as amended, shall be deemed to be part of this registration as of
the time it was declared effective.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, as amended, each post-effective amendment shall 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.
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II-4
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-3 and has duly caused this Registration
Statementamendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Clemente, State of California, on the 1st3rd day of July, 1998.
REGISTRANT:
BIOLASE TECHNOLOGY, INC.
By: /s/ DONALD A. LA POINT
-------------------------------------
Donald A. La Point
June, 2002.
BIOLASE TECHNOLOGY, INC. |
|
| By: | | /s/ JEFFREY W. JONES
|
| | Jeffrey W. Jones President, Chief Executive Officer and Director |
POWER OF ATTORNEY
Each person whose signature appears below constitutes and Chief Executive Officer
appoints Jeffrey W. Jones and Edson J. Rood, jointly and severally, as attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign any amendment to this Registration Statement and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting to said attorneys-in-fact, and each of them, 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 he might or could do in person hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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 stated.
indicated.
SIGNATURE TITLE DATE
- ------------------------------------------------- ------------------------------------------------- ------------
/s/ DONALD A. LA POINT Signature
| | Title
| | Date
|
|
/s/ JEFFREY W. JONES
Jeffrey W. Jones | | President and Chief Executive Officer (Principal July 1, 1998
- ------------------------------------------------ Executive Officer) and a Director Donald A. La Point
/s/ STEPHEN R. TARTAMELLA (principal executive officer) | | June 3, 2002 |
|
/S/ EDSON J. ROOD
Edson J. Rood | | Vice President and Chief Financial Officer July 1, 1998
- ------------------------------------------------ (Principal Financial(principal financial and Accounting Officer)accounting officer) | | June 3, 2002 |
|
/s/ FEDERICO PIGNATELLI
Federico Pignatelli | | Director and
Stephen R. Tartamella Secretary
/s/ FEDERICO PIGNATELLI Chairman of the Board July 1, 1998
- ------------------------------------------------
Federico Pignatelli
/s/ GEORGE | | June 3, 2002 |
|
/s/ WILLIAM A. OWENS
William A. Owens | | Director | | June 3, 2002 |
|
/s/ GEORGE V. d'ARBELOFF Director July 1, 1998
- ------------------------------------------------
D’ARBELOFF
George V. d'Arbeloff
d’Arbeloff | | Director | | June 3, 2002 |
II-3
INDEX OF EXHIBITS
Exhibit Number
| | |
|
| 4.1 | | Specimen of common stock certificate. |
|
| 4.2 | | Form of Common Stock Purchase Warrant for private placement investors. |
|
| 4.3 | | Form of Common Stock Purchase Warrant for GEM Holdings Corp. |
|
| 4.4 | | Form of rights certificate for preferred stock purchase rights (incorporated by reference to Exhibit A to Exhibit 1 to the Registrant’s Registration Statement on Form 8-A as filed with the SEC on December 29, 1998). |
|
| 4.5 | | Restated Certificate of Incorporation, as Amended (incorporated by reference to the Registrant’s Annual Report on Form 10-K filed with the SEC on April 14, 1994). |
|
| 4.6 | | Amended and Restated Bylaws (incorporated by reference to the Registrant’s Quarterly Report on Form 10-QSB filed with the SEC on September 15, 1995). |
|
| 5.1 | | Opinion of Brobeck, Phleger & Harrison LLP. |
|
| 23.1 | | Consent of Independent Accountants. |
|
| 23.2 | | Consent of Brobeck, Phleger & Harrison LLP (included in Exhibit 5.1). |
|
| 24.1 | | Power of Attorney (included in signature page). |