<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 13, 1997
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
SCHICK TECHNOLOGIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 3844 11-3374812
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION INDUSTRIAL IDENTIFICATION NUMBER)
OF INCORPORATION OR CLASSIFICATION CODE
ORGANIZATION) NUMBER)
------------------------
31-00 47TH AVENUE
LONG ISLAND CITY, NEW YORK 11101
(718) 937-5765
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
DAVID B. SCHICK
CHAIRMAN OF THE BOARD, CHIEF EXECUTIVE OFFICER AND PRESIDENT
SCHICK TECHNOLOGIES, INC.
31-00 47TH AVENUE
LONG ISLAND CITY, NEW YORK 11101
(718) 937-5765
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
Copies to:
M. RIDGWAY BARKER, ESQ. BARBARA L. BECKER, ESQ.
KELLEY DRYE & WARREN LLP CHADBOURNE & PARKE LLP
TWO STAMFORD PLAZA 30 ROCKEFELLER PLAZA
281 TRESSER BOULEVARD NEW YORK, NEW YORK 10112
STAMFORD, CONNECTICUT 06901 (212) 408-5100
(203) 324-1400
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after this Registration Statement becomes
effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, 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 of 1933, please 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
under the Securities Act of 1933, please check the following box. / /
------------------------
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM
TITLE OF EACH CLASS AGGREGATE AMOUNT OF
OF SECURITIES TO BE REGISTERED OFFERING PRICE(1)(2) REGISTRATION FEE(2)
- ------------------------------ -------------------- -------------------
Common Stock, par value $.01
per share.................... $34,212,500 $10,367.42
(1) Includes $4,462,500 of Common Stock which may be purchased by the
Underwriters to cover over-allotments, if any.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION 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
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SCHICK TECHNOLOGIES, INC.
CROSS-REFERENCE SHEET
SHOWING LOCATION IN THE REGISTRATION STATEMENT OF
INFORMATION REQUIRED BY ITEMS IN PART I OF FORM S-1
FORM S-1 LOCATION IN THE REGISTRATION
ITEM NUMBER AND HEADING STATEMENT
- ------------------------------------------- ------------------------------------
1. Forepart of the Registration Statement
and Outside Front Cover Page of
Prospectus............................ Outside Front Cover Page
2. Inside Front and Outside Back Cover
Pages of Prospectus................... Outside Back Cover Page; Additional
Information
3. Summary Information and Risk Factors.... Prospectus Summary; The Company;
Risk Factors
4. Use of Proceeds......................... Prospectus Summary; Risk Factors;
Use of Proceeds
5. Determination of Offering Price......... Outside Front Cover Page; Risk
Factors; Underwriting
6. Dilution................................ Risk Factors; Dilution
7. Selling Security Holders................ Not Applicable
8. Plan of Distribution.................... Outside Front Cover Page;
Underwriting
9. Description of Securities to be
Registered............................ Outside Front Cover Page; Prospectus
Summary; Risk Factors; Dividend
Policy; Description of Capital
Stock; Shares Eligible For Future
Sale; Management
10. Interests of Named Experts and
Counsel............................... Legal Matters; Experts
11. Information with Respect to the
Registrant
(a) Description of Business........... Prospectus Summary; The Company;
Business
(b) Description of Property........... Business
(c) Legal Proceedings................. Business
(d) Market Price of and Dividends on
the Registrant Stockholder
Matters......................... Dividend Policy; Description of
Capital Stock
(e) Financial Statements.............. Index to Financial Statements
(f) Selected Financial Data........... Prospectus Summary; Selected
Financial Data; Management's
Discussion and Analysis of
Financial Condition and Results of
Operations
(g) Supplementary Financial
Information..................... Prospectus Summary; Summary
Financial Data; Management's
Discussion and Analysis of
Financial Condition and Results of
Operations
(h) Management's Discussion and
Analysis of Financial Condition
and Results of Operations....... Management's Discussion and Analysis
of Financial Condition and Results
of Operations
(i) Changes in and Disagreements with
Accountants on Accounting and
Financial Disclosure............ Not Applicable
(j) Directors and Executive Officers.. Management
(k) Executive Compensation............ Management
(l) Security Ownership of Certain
Beneficial Owners and
Management...................... Risk Factors; Principal
Stockholders; Shares Eligible For
Future Sale
(m) Certain Relationships and Related
Transactions.................... Certain Transactions
12. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities........................... Part II--Item 17
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED MAY 13, 1997
PROSPECTUS
1,750,000 SHARES
[LOGO]
SCHICK TECHNOLOGIES, INC.
COMMON STOCK
---------------------
All of the shares (the 'Shares') of Common Stock offered hereby (the
'Offering') are being sold by Schick Technologies, Inc. (the 'Company'). Prior
to the Offering, there has been no public market for the Common Stock. It is
currently estimated that the initial public offering price per share will be
between $15.00 and $17.00 per share. See 'Underwriting' for a list of the
factors to be considered in determining the initial public offering price. The
Company has applied for listing the Common Stock on the Nasdaq National Market
under the symbol 'SCHK.'
---------------------
THE SHARES OF COMMON STOCK OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK.
SEE 'RISK FACTORS' BEGINNING ON PAGE 7.
---------------------
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.
UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS TO
PUBLIC COMMISSIONS(1) COMPANY(2)
-------- -------------- -----------
PER SHARE..... $ $ $
TOTAL(3)...... $ $ $
(1) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended (the 'Securities Act'). See 'Underwriting.'
(2) Before deducting expenses of the Offering payable by the Company, estimated
at $ .
(3) The Company has granted the Underwriters a 30-day option to purchase up to
additional shares of Common Stock on the same terms and conditions
set forth above, solely to cover over-allotments, if any. If such option is
exercised in full, the total Price to Public, Underwriting Discounts and
Commissions and Proceeds to Company will be $ , $ and $ ,
respectively. See 'Underwriting.'
---------------------
The shares of Common Stock offered by this Prospectus are offered by the
Underwriters, subject to prior sale, to withdrawal, cancellation or modification
of the offer without notice, to delivery to and acceptance by the Underwriters
and to certain further conditions. It is expected that delivery of certificates
representing the shares of Common Stock will be made at the offices of Lehman
Brothers Inc., New York, New York, on or about , 1997.
---------------------
LEHMAN BROTHERS
J.P. MORGAN & CO.
PACIFIC GROWTH EQUITIES, INC.
, 1997
<PAGE>
[Graphics depicting the principal components of the CDR(Trademark)
system and showing the CDR(Trademark) system in use in a dentist's
office].
[Caption: Schick Technologies, Inc.].
<PAGE>
[Graphics depicting the CDR(Trademark) System and CDR(Trademark)
intra-oral sensors].
[Captions: Sensors by Schick. Intra-oral CDR(Trademark) sensors
correspond to three standard sizes of conventional x-ray film to suit a
variety of needs. Computer Dental Radiography (CDR(Trademark)) System.
Instantly produces full-sized, high resolution dental x-rays on a color
computer monitor without film or chemical development and with up to 90% less
radiation than conventional x-rays].
<PAGE>
[Graphics depicting the accuDEXA(Trademark) bone mineral sensity
measurement device and the CDRCam(Trademark)].
[Captions: The accuDEXA bone mineral density measurement system. The
low-cost, ready-to-use and highly precise diagnostic tool that instantly
measures bone mineral density. (Pending FDA 510(k) pre-marketing clearance).
CDRCam(Trademark). The innovative intra-oral camera which fully integrates
with the CDR(Trademark) system].
<PAGE>
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission (the
'Commission') a Registration Statement on Form S-1 (together with all
amendments, exhibits, schedules and supplements thereto, the 'Registration
Statement') under the Securities Act with respect to the Shares and the Company.
This Prospectus, which forms a part of the Registration Statement, does not
contain all of the information set forth in the Registration Statement. For
further information with respect to the Company and the Shares, reference is
made to the Registration Statement. Statements contained in this Prospectus as
to the contents of any contract or other document are not necessarily complete
and, where such contract or other document is filed as an exhibit to the
Registration Statement, each such statement is qualified in all respects by the
provisions in such exhibit, to which reference is hereby made. Copies of the
Registration Statement may be examined without charge at the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549, and the Commission's Regional Offices located at Seven World Trade
Center, 13th Floor, New York, New York 10048 and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of all or any
portion of the Registration Statement can be obtained from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, upon
payment of certain fees prescribed by the Commission. The Commission maintains a
Web site that contains registration statements, reports, proxy and information
statements and other information regarding registrants (including the Company)
that file electronically with the Commission. The address of such Web site is
http://www.sec.gov.
The Company intends to furnish its stockholders with annual reports
containing financial statements for each fiscal year audited by independent
accountants and quarterly reports for the first three quarters of each fiscal
year containing unaudited financial information.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain statements under 'Prospectus Summary,' 'Risk Factors,'
'Management's Discussion and Analysis of Financial Condition and Results of
Operations' and 'Business,' including statements regarding the anticipated
development and expansion of the Company's business, the markets in which the
Company's products are offered, anticipated capital expenditures and regulatory
reform, the intent, belief or current expectations of the Company, its directors
or its officers with respect to the Company's future financial performance and
other matters, and other statements regarding matters that are not historical
facts, are 'forward-looking' statements (within the meaning of the Private
Securities Litigation Reform Act of 1995). Such 'forward-looking' statements are
subject to various risks and uncertainties. Accordingly, actual results may
differ materially from those expressed or implied by such forward-looking
statements. Factors that could cause actual results to differ materially from
those expressed or implied by such forward-looking statements include, but are
not limited to, the factors set forth under 'Risk Factors' and 'Business.'
------------------------
CERTAIN PERSONS PARTICIPATING IN THE OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE COMMON STOCK. SUCH
TRANSACTIONS MAY INCLUDE THE PURCHASE OF SHARES OF COMMON STOCK FOLLOWING THE
PRICING OF THE OFFERING TO COVER A SYNDICATE SHORT POSITION IN THE COMMON STOCK
OR FOR THE PURPOSE OF MAINTAINING THE PRICE OF THE COMMON STOCK AND THE
IMPOSITION OF PENALTY BIDS.
3
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by and should be read in
conjunction with the more detailed information and financial statements,
including the accompanying notes, appearing elsewhere in this Prospectus. Unless
otherwise indicated or required by the context, references to the 'Company' mean
Schick Technologies, Inc. and its predecessors and subsidiary and references to
a fiscal year mean the fiscal year ended March 31 of the same calendar year.
Unless otherwise indicated, all information in this Prospectus (i) assumes no
exercise of the over-allotment option granted to the Underwriters and (ii) gives
retroactive effect to the formation of a holding company, the change of the
state of incorporation of the Company, the amendments to the Company's
Certificate of Incorporation (the 'Certificate of Incorporation') and By-Laws
(the 'By-Laws'), and the 2.8 for 1 stock exchange to be effected prior to the
closing of the Offering as described under 'The Company.' For a discussion of
considerations relevant to an investment in the common stock, $.01 par value per
share (the 'Common Stock'), see 'Risk Factors.'
THE COMPANY
Schick Technologies, Inc. designs, develops and manufactures innovative
digital imaging systems and devices for the dental and medical markets. The
Company's products, which are based on proprietary digital imaging technologies,
create instant high resolution radiographs with reduced levels of radiation. In
the field of dentistry, the Company has developed, and currently manufactures
and markets, the leading intra-oral digital radiography system. The Company has
also developed an inexpensive and easy-to-operate bone mineral density ('BMD')
measurement device to assist in the diagnosis of osteoporosis. This device is
scheduled for introduction in the second half of 1997, pending marketing
clearance from the United States Food and Drug Administration (the 'FDA'), and
will be sold for use in primary care physicians' offices. In addition, the
Company is developing large-area radiographic imaging devices for digital
mammography. The Company is also developing low-cost, large-area radiographic
imaging systems using its proprietary technology for medical applications and
industrial markets.
The Company's CDR(Trademark) computed dental radiography imaging system was
introduced in March 1994 and has become the leading product in its field. As of
March 31, 1997, the Company had sold over 3,200 CDR(Trademark) systems for use
in dental offices, hospitals and universities. The CDR(Trademark) system
produces instant, full size, high resolution dental x-ray images on a color
computer monitor, without film or the need for chemical development, and with a
radiation dose that is approximately 10% of that required for conventional x-ray
film. The CDR(Trademark) system uses an intra-oral sensor to capture the x-ray
image. Once captured, the x-ray image is transmitted to a computer where it is
permanently stored as part of the patient's x-ray records and can be analyzed
using diagnostic software developed by the Company. The Company's
CDRCam(Trademark), an intra-oral camera which fully integrates with the
CDR(Trademark) system, was introduced in early 1997. The Company believes that
the potential market for dental digital radiography products exceeds $4 billion.
The Company believes that its accuDEXA(Trademark) device measures BMD more
quickly, accurately and easily than any comparable BMD measurement device
currently on the market, with a minimal radiation dosage. The device is a highly
precise point-of-treatment diagnostic tool for use in the primary care
physician's office as part of a patient's regular physical examination. In
connection with the development of accuDEXA(Trademark), the Company entered into
an agreement with Merck & Co., Inc. ('Merck') pursuant to which Merck agreed to
provide the Company with financing and to develop certain clinical protocols.
See 'Business--Merck Agreement.' The Company filed its 510(k) application with
the FDA in May 1997 and, pending FDA marketing clearance, the Company plans to
introduce this product in the second half of 1997. The Company believes that the
potential market for the accuDEXA(Trademark) exceeds $3 billion.
The Company is developing a digital mammography sensor which it believes
will offer high quality diagnostic capability at a substantially lower cost than
other available devices. The Company intends to produce an 8 x 8 cm 'spot'
mammography sensor prototype by the end of 1997, and, subsequently, a 24 x 30 cm
'full field' sensor. The Company is also developing other digital imaging
products for additional medical and industrial applications.
4
<PAGE>
The Company's CDR(Trademark) dental products are sold in the United States,
via its direct sales force, and abroad, via independent regional distributors.
The Company intends to sell accuDEXA(Trademark) pursuant to an original
equipment manufacturer ('OEM') sales agreement with Norland Medical Systems,
Inc. ('Norland'), by which Norland will sell accuDEXA(Trademark) under its own
trade name. The Company also intends to sell accuDEXA(Trademark) through a
direct sales force and other established independent distributors and
manufacturers of medical and radiological equipment. The Company intends to sell
its mammography devices through established manufacturers in the mammography
market. See 'Business--Sales and Marketing.'
The Company's products are based on its proprietary enhanced charged
coupled device ('CCD') and active pixel sensor ('APS') imaging technologies. The
Company's CDR(Trademark) system is made using an enhanced, low-cost, large-area,
high resolution CCD device. APS allows the fabrication of large-area imaging
devices with high resolution at a fraction of the cost of traditional
technologies. APS technology was originally developed by the Jet Propulsion
Laboratory at the California Institute of Technology ('Cal Tech'), and is
licensed to the Company for a broad range of health care applications. See
'Business--Patents, Trade Secrets and Proprietary Rights.'
The Company's objective is to be the leading provider of high resolution,
low-cost digital radiography products. The Company plans to leverage its
technological advantage in the digital imaging field to penetrate a broad range
of diagnostic imaging markets. The Company believes that its proprietary
technologies and expertise in electronics, imaging software and advanced
packaging will enable it to compete successfully in these markets. Key elements
of the Company's strategy include (i) expanding market leadership in dental
digital radiography through expanded sales channels, further product
enhancements, and increased direct sales and marketing activities; (ii)
introducing accuDEXA(Trademark) to the bone densitometry market to aid in the
diagnosis of osteoporosis through a combination of OEM, direct sales and other
distribution channels; (iii) introducing new products based on patented and
proprietary APS technology for digital mammography, other medical applications
and industrial markets; and (iv) expanding international marketing channels for
existing and new products.
THE OFFERING
Common Stock offered................ 1,750,000 shares
Common Stock to be outstanding after
the Offering...................... 9,707,231 shares(1)
Use of proceeds..................... The Company intends to use the net proceeds
from the Offering to: (i) repay the
principal of the Merck Loan (as defined in
'Use of Proceeds') in the amount of
$1,512,833 and accrued interest thereon
which, at March 31, 1997, totaled $101,654;
(ii) expand its research and development
capabilities; and (iii) expand its
marketing and sales efforts. Any remaining
balance of the net proceeds will be applied
to working capital and general corporate
purposes. Pending such uses, the Company
intends to invest the net proceeds in
short-term, investment grade, interest
bearing securities. See 'Use of Proceeds.'
Proposed Nasdaq National Market
symbol............................ SCHK
- ------------------
(1) Excludes (i) 470,400 shares reserved for issuance upon the exercise of
options under the Company's 1996 Employee Stock Option Plan (the '1996
Employee Stock Option Plan'), under which options covering 74,953 shares
with a weighted average exercise price of $7.14 per share are outstanding,
(ii) 35,000 shares reserved for issuance upon the exercise of options under
the Company's Directors Stock Option Plan (the 'Directors Stock Option
Plan,' and together with the 1996 Employee Stock Option Plan, the 'Option
Plans'), (iii) 526,470 shares reserved for issuance upon the exercise of
warrants issued by the Company in 1996 (the 'Warrants') with a weighted
average exercise price of $8.31 per share and (iv) 56,000 shares reserved
for issuance upon the exercise of options which were granted prior to the
implementation of the
(Footnotes continued on next page)
5
<PAGE>
(Footnotes continued from previous page)
1996 Employee Stock Option Plan at an exercise price of $1.79 per share. See
'Management--1996 Employee Stock Option Plan,' 'Management--Directors Stock
Option Plan' and 'Description of Capital Stock--Warrants.'
SUMMARY FINANCIAL DATA
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
YEAR ENDED MARCH 31,
-------------------------------------------------------------------
1993 1994 1995 1996 1997
----------- --------- ---------- ---------- -----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenue, net.................. $ -- $ 29 $ 2,726 $ 6,804 $ 16,101
Gross profit.................. -- 15 1,225 3,461 8,080
Operating expenses:
Selling and marketing....... -- 158 517 1,620 4,961
General and administrative.. 166 121 560 1,388 2,088
Research and development.... 247 393 150 458 1,418
----------- --------- ---------- ---------- -----------
Total operating
expenses............... 413 672 1,227 3,466 8,467
----------- --------- ---------- ---------- -----------
Net loss...................... $ (411) $ (656) $ (24) $ (113) $ (352)
----------- --------- ---------- ---------- -----------
----------- --------- ---------- ---------- -----------
Net loss per common
share(1)(2)................. $ (0.08) $ (0.10) -- $ (0.02) $ (0.04)
----------- --------- ---------- ---------- -----------
----------- --------- ---------- ---------- -----------
Weighted average number of
common shares
outstanding(1)(2)........... 4,891,784 6,370,095 7,050,798 7,219,385 8,124,787
----------- --------- ---------- ---------- -----------
----------- --------- ---------- ---------- -----------
</TABLE>
MARCH 31, 1997
---------------------------
ACTUAL AS ADJUSTED(3)
--------- --------------
BALANCE SHEET DATA:
Cash and cash equivalents... $ 1,710 $ 25,536
Working capital............. 5,518 29,309
Total assets................ 11,060 34,851
Total liabilities........... 4,973 3,359
Stockholders' equity........ 6,087 31,492
- ------------------
(1) For information concerning the computation of net loss per share and
weighted average number of common shares outstanding, see Note 2 to the
financial statements.
(2) Reflects the restructuring and recapitalization described in Note 15 to the
financial statements.
(3) As adjusted to give effect to (i) the sale of the Shares, net of expenses,
at an assumed initial public offering price of $16.00 per share (the
mid-point of the range set forth on the cover page) and (ii) the repayment
of the Merck Loan in the principal amount of $1,512,833 and accrued but
unpaid interest thereon. See 'Use of Proceeds.'
6
<PAGE>
RISK FACTORS
An investment in the Shares involves a high degree of risk. Prospective
investors should consider carefully the following factors, in addition to the
other information included in this Prospectus, before purchasing any of the
Shares.
LIMITED OPERATING HISTORY; LOSSES FROM OPERATIONS
The Company began operations in 1992 and has a limited operating history.
The Company has sustained losses since its inception and had an accumulated
deficit at March 31, 1997 of $1.6 million. The Company may be subject to many
risks common to companies with limited operating histories, including reliance
on key personnel, a competitive environment and difficulty addressing
unanticipated problems, delays and expenses. There can be no assurance that the
Company will become profitable. Since its formation, the Company's operations
have required substantial capital.
DEPENDENCE ON CDR(TRADEMARK)
The Company's revenues are primarily generated from sales of its
CDR(Trademark) system and, to a lesser extent, the CDRCam(Trademark). There can
be no assurance that the CDR(Trademark) system or CDRCam(Trademark) will not be
rendered obsolete or inferior as a result of technological change, changing
customer needs or new product introductions, each of which would have a material
adverse effect on the Company. There can be no assurance that the Company's
competitors will not succeed in developing or marketing technologies and
products that are more commercially attractive than the CDR(Trademark) system or
CDRCam(Trademark). The Company's success will depend in part on its ability to
improve and enhance the CDR(Trademark) system and CDRCam(Trademark) in a timely
manner. While the Company is actively engaged in research and development to
improve and enhance the CDR(Trademark) system and CDRCam(Trademark), there can
be no assurance that the Company will be successful. The failure to enhance the
CDR(Trademark) system or CDRCam(Trademark) in a timely manner could have a
material adverse effect on the Company. See 'Business--Overview of Company
Technology; --Products; --Sales and Marketing; --Competition.'
DEPENDENCE ON DEVELOPING AND MARKETING NEW PRODUCTS AND ENHANCEMENTS TO EXISTING
PRODUCTS
The Company is currently developing new products for the dental and medical
markets. The Company has filed a 510(k) application with the FDA, seeking
approval for general use and marketing of accuDEXA(Trademark). Additionally, the
Company expects to file other 510(k) applications with the FDA in connection
with the digital mammography sensors currently under development by the Company
and other future products. There can be no assurance that the Company will
obtain pre-market clearance for accuDEXA(Trademark), digital mammography sensors
or any other future products, or that in order to obtain 510(k) clearance, the
Company will not be required to submit additional data or meet additional FDA
requirements that may substantially delay the 510(k) process and result in
substantial additional expense. Moreover, such pre-marketing clearance, if
obtained, may be subject to conditions on the marketing or manufacturing of
accuDEXA(Trademark) which could impede the Company's ability to manufacture
and/or market the product. In addition, while the Company intends to distribute
accuDEXA(Trademark) pursuant to an OEM sales agreement with Norland and through
a direct sales force and other established independent distributors and
manufacturers of medical and radiological equipment, there can be no assurance
that the Company will be able to successfully develop any such distribution
channel. Furthermore, there can be no assurance that accuDEXA(Trademark) will be
accepted by physicians as an attractive alternative to BMD measurement devices
currently available. While the Company is actively engaged in research and
development to develop accuDEXA(Trademark) and other new products, there can be
no assurance that the Company will be successful in such endeavors. There can be
no assurance that accuDEXA(Trademark) or any other products to be developed by
the Company will be approved by or receive marketing clearance from applicable
governmental authorities. If the Company is unable to develop, obtain regulatory
approval for and market new products and enhancements to existing products, it
will have a material adverse effect on the Company. See 'Business--Overview of
Company Technology; --Products; --Sales and Marketing; --Competition.'
TECHNOLOGICAL CHANGE
The market for the Company's products is characterized by rapid and
significant technological change, evolving industry standards and new product
introductions. The Company's products require significant planning, design,
development and testing which require significant capital commitments and
investment by the
7
<PAGE>
Company. There can be no assurance that the Company's products or proprietary
technologies will not become uncompetitive or obsolete as a result of
technological change, evolving industry standards or new product introductions
or that the Company will be able to generate any economic return on its
investment in product development. If the Company's products or technologies
become uncompetitive or obsolete, it will have a material adverse effect on the
Company.
RELIANCE ON PATENTS AND PROPRIETARY TECHNOLOGY; RISK OF PATENT INFRINGEMENT
The Company currently has an issued United States patent for an 'Intra-Oral
Sensor For Computer Aided Radiography,' and an allowed United States patent
application for a 'Large Area Image Detector.' The Company also has one
additional patent application currently pending before the United States Patent
and Trademark Office (the 'PTO').
The Company is the licensee in certain fields of biomedical radiology of
certain patents, patent applications and other know-how related to APS
technology (collectively, the 'APS Technology'), the technology which was
developed by Cal Tech. The Company has been advised by the licensor of the APS
Technology that the Company's rights to such technology are subject to
government rights to use, noncommercial educational rights to use by Cal Tech
and the right of a third party to obtain a nonexclusive license from Cal Tech
with respect to such technology. The Company believes that, as of the date of
this Prospectus, except for such third party's exercise of its right to obtain
a nonexclusive license to use APS Technology in a field other than biomedical
radiology, none of the foregoing parties have given notice of their exercise of
any of their respective rights to the APS Technology. There can be no assurance
that this will continue to be the case, and any such exercise could have a
material adverse effect on the Company.
There can be no assurance that any of the Company's patents, any of the
patents of which the Company is a licensee or any patents which may issue to the
Company or which the Company may license in the future, will provide the Company
with a competitive advantage or afford the Company protection against
infringement by others, or that the patents will not be successfully challenged
or circumvented by competitors of the Company.
The Company is also the owner of certain trade secrets, which it protects
by, among other things, entering into non-disclosure, confidentiality,
non-solicitation and non-competition agreements. However, there can be no
assurance that the duties imposed by these agreements, such as the duty to
maintain confidentiality and the duty not to compete, will not be breached, or
that such breaches will not have a material adverse effect on the Company. See
'Business--Patents, Trademarks and Trade Secrets.'
There also can be no assurance that the technology practiced by the Company
will not infringe upon the patents of others. The Company's CDR(Trademark)
system is currently the subject of litigation regarding the patent rights of
others. See '--Litigation' and 'Business--Litigation.' In the event that any
such infringement claim is successful, there can be no assurance that the
Company would be able to negotiate with the patent holder for a license, in
which case the Company could be prevented from practicing the subject matter
claimed by such patent. In addition, there can be no assurance that the Company
would be able to redesign its products to avoid infringement. The inability of
the Company to practice the subject matter of patents claimed by others or to
redesign its products to avoid infringement could have a material adverse effect
on the Company.
LITIGATION
The Company is a named defendant in two lawsuits instituted by Trophy
Radiologie, S.A. ('Trophy S.A.'). One lawsuit was instituted in France and the
other in the United States.
The French lawsuit was filed in November 1995, in the tribunal de Grande
Instance de Bobigny, the French patent court, and originally alleged that the
Company's CDR(Trademark) system infringes French Patent No. 2,547,495, European
Patent No. 129,451 and French Certificate of Addition No. 2,578,737. These
patents, all of which are related, are directed to a CCD-based intra-oral
sensor. Since filing its lawsuit, the allegation of infringement with respect to
the Certificate of Addition has been withdrawn. Trophy S.A. is seeking a
permanent injunction and unspecified damages, including damages for its
purported lost profits. The Company believes that the lawsuit is without merit,
and is vigorously defending it. The Company is represented by a French barrister
and French patent counsel.
The lawsuit in the United States was filed in March 1996 by Trophy S.A.,
Trophy Radiology, Inc., a United States subsidiary of Trophy S.A. ('Trophy
Inc.') and the named inventor on the patent in suit, Francis Mouyen, a French
citizen. The suit was brought in the United States District Court for the
Eastern District of New York,
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<PAGE>
and alleges that the Company's CDR(Trademark) system infringes United States
Patent No. 4,593,400 (the ' '400 patent'), which is related to the patents in
the French lawsuit. Trophy S.A., Trophy Inc. and Mouyen are seeking a permanent
injunction and unspecified damages, including damages for purported lost
profits, enhanced damages for the Company's purported willful infringement and
an award of attorney fees. The Company believes that the lawsuit is without
merit, and is vigorously defending it. The Company is represented by United
States intellectual property counsel, and has also obtained a formal opinion of
intellectual property counsel that the CDR(Trademark) system does not infringe
the '400 patent.
In addition, the Company has counter-sued Trophy S.A. and Trophy Inc. for
infringement of United States Patent No. 4,160,997, a recently expired patent
which was exclusively licensed to the Company by its inventor, Dr. Robert
Schwartz, and for false advertising and unfair competition. The Company believes
that its counter-suits are meritorious, and is vigorously pursuing them.
The Company has also been sued by Radworks Corp. ('Radworks') and the Board
of Regents of the University of Texas (the 'University of Texas'). That suit,
filed in December 1996 in the United States District Court for the Western
District of Texas, alleges that the Company's CDR(Trademark) system infringes
United States Patent No. 5,179,579 (the ' '579 patent'). The '579 patent is
directed to a display system for digital dental radiographs. Radworks and the
University of Texas are seeking a permanent injunction and unspecified damages,
including enhanced damages for the Company's purported willful infringement and
an award of attorney fees. The Company believes that the lawsuit is without
merit, and is vigorously defending it. The Company is represented by
intellectual property counsel and Texas local counsel, and has also obtained a
formal opinion of intellectual property counsel that the CDR(Trademark) system
does not infringe the '579 patent.
There can be no assurance that the Company will be successful in its
defense of any of these actions, or in its counter-suits. If the Company is
unsuccessful in its defense of any of these actions, it could have a material
adverse effect upon the Company. Moreover, regardless of their outcome, the
Company may be forced to expend significant amounts of money in legal fees in
connection with these lawsuits.
DEPENDENCE ON KEY SUPPLIERS; VOLATILITY OF SEMICONDUCTOR MARKET
Semiconductors are the most significant product components the Company
purchases. Since its inception, the Company has purchased virtually all of its
semiconductors principally from one supplier. The availability and price of
these components may be subject to change due to interruptions in production,
changing market conditions and other events. There can be no assurance that, if
the Company were to enter into agreements with other suppliers, such suppliers
would be able to deliver such semiconductors at an acceptable price or in a
timely manner. If the Company were unable to develop reasonably priced
alternative sources in a timely manner, or if the Company encountered delays or
other difficulties in the supply of such products and other materials from third
parties, there could be a material adverse effect on the Company. In past years,
semiconductors have been subject to significant price fluctuations. There can be
no assurance that the Company can mitigate the effect of future price increases
on its results of operations and financial condition. See 'Business--
Manufacturing.'
PRODUCT WARRANTIES
The Company generally warrants each of its products against defects in
materials and workmanship for a period of one year from the date of shipment.
Costs associated with product returns, including servicing and/or repair of
products, during the warranty period, as a percentage of total revenues during
fiscal 1997, was less than 5%. Should the Company experience an increase in
product returns there could be material adverse effect on the Company by, among
other things, requiring additional expenditures for parts and personnel as well
as damaging the Company's reputation and goodwill.
REGULATORY AND LEGISLATIVE RISKS
The Company must obtain certain approvals by and marketing clearances from
governmental authorities, including the FDA and similar health authorities in
foreign countries, to market and sell its products in those countries. The FDA
regulates the marketing, manufacturing, labeling, packaging, sale and
distribution of 'medical devices,' as do various foreign authorities in their
respective jurisdictions. The FDA enforces additional regulations regarding the
safety of equipment utilizing x-rays. Various states also impose similar
regulations. The Company's CDR(Trademark) system is currently regulated by such
authorities and certain of the Company's new products, including
accuDEXA(Trademark), will require approval by or marketing clearance from
various governmental authorities, including the FDA.
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The FDA review process typically requires extended proceedings pertaining
to the safety and efficacy of new products. A 510(k) application is required in
order to market a new or modified medical device. If specifically required by
the FDA, a pre-market approval ('PMA') may be necessary. Such proceedings, which
must be completed prior to marketing a new medical device, are potentially
expensive and time consuming. They may delay or hinder a product's timely entry
into the marketplace. Moreover, there can be no assurance that the review or
approval process for these products by the FDA or any other applicable
governmental authorities will occur in a timely fashion, if at all, or that
additional regulations will not be adopted or current regulations amended in
such a manner as will adversely affect the Company. The Company is also subject
to other federal, state and local laws, regulations and recommendations relating
to safe working conditions, laboratory and manufacturing practices. The extent
of government regulation that might result from any future legislation or
administrative action cannot be accurately predicted. Failure to comply with
regulatory requirements could have a material adverse effect on the Company.
International sales of the Company's products are subject to the regulatory
agency product registration requirements of each country in which the Company's
products are sold. The regulatory review process varies from country to country
and may in some cases require the submission of clinical data. The Company
typically relies on its distributors in foreign countries to obtain the required
regulatory approvals. There can be no assurance, however, that such approvals
will be obtained on a timely basis, if at all, or that the failure to obtain
such approval by a distributor will not have a material adverse effect on the
Company. See 'Business--Government Regulation.' The Company's customers operate
in the health care industry, which is highly regulated. Both existing and future
governmental regulations could adversely impact the Company. Additionally,
cost-containment efforts by health maintenance organizations may adversely
affect the potential market for the Company's devices.
POTENTIAL FOR PRODUCT RECALL AND PRODUCT LIABILITY CLAIMS
Products such as those sold by the Company may be subject to recall for
unforeseen reasons. In addition, certain applications, including projected
applications, of the Company's products entail the risk of product liability
claims. Such risks will exist even with respect to those products that have
received, or in the future may receive, regulatory approval for commercial sale.
These claims may be made by consumers, distributors, wholesalers or others. The
Company maintains insurance coverage related to product liability claims in the
amount of $1 million per occurrence, annual aggregate maximum coverage in the
amount of $2 million, and umbrella coverage in the amount of $10 million. No
assurance can be given that product liability insurance coverage will continue
to be available or, if available, that it can be obtained in sufficient amounts
or at reasonable cost or that it will be sufficient to cover any claims that may
arise. The Company does not maintain any insurance relating to potential recalls
of its products. Costs associated with potential product recalls or product
liability claims could have a material adverse effect on the Company. See
'Business--Insurance.'
DEPENDENCE ON THIRD-PARTY REIMBURSEMENT
Third-party payors, including government health administration authorities,
private health care insurers and other organizations regulate the reimbursement
of fees related to certain diagnostic procedures or medical treatments.
Third-party payors are increasingly challenging the price and cost-effectiveness
of medical products and services. While the Company cannot predict what effect
the policies of government entities and other third-party payors will have on
future sales of the Company's products, there can be no assurance that such
policies would not have a material adverse effect on the Company. See
'Business--Products.'
COMPETITION
Competition relating to the Company's current product is intense and
includes various companies, both within and outside of the United States. The
Company anticipates that competition for its future products will also be
intense and include various companies, both within and outside of the United
States. Many of the Company's competitors are large companies with substantially
greater financial, sales and marketing, and technical resources, larger and more
experienced research and development staffs, more extensive physical facilities
and substantially greater experience in obtaining regulatory approvals and in
marketing products than the Company. In addition, there can be no assurance that
the Company's competitors are not currently developing, or will not attempt to
develop, technologies and products that are more effective than those being
developed by the Company or that would otherwise render the Company's existing
and new technology and products obsolete or uncompetitive. No assurance can be
given that the Company will be able to compete
10
<PAGE>
successfully. The inability of the Company to compete successfully or the
development by the Company's competitors of technology and products that are
more effective than those being developed by the Company would have a material
adverse effect on the Company. See 'Business--Competition.'
DEPENDENCE ON THIRD-PARTY DISTRIBUTORS
The Company markets and distributes a significant portion of its
CDR(Trademark) systems overseas through third-party independent distributors.
From time to time, a limited number of distributors account for a significant
portion of the Company's revenues. In 1996, one customer accounted for 18.0% of
the Company's sales. In general, these distributors may discontinue marketing
the Company's products with little or no notice. Certain of the Company's
distributors also may market products which compete with the Company's products.
Additionally, the Company intends to market its current and future products in
the United States and its future products overseas through independent
third-party distributors. The loss of, or a significant reduction in sales
volume through, one or more of the Company's distributors could have a material
adverse effect on the Company. See 'Business--Products and --Sales and
Marketing.'
UNCERTAINTIES ASSOCIATED WITH INTERNATIONAL MARKETS
In fiscal 1995, 1996 and 1997, international sales accounted for 27%, 31%,
24%, respectively, of the Company's revenues, and the Company anticipates that
international sales will continue to account for a significant percentage of the
Company's revenues. International revenues are subject to a number of
uncertainties, including the following: agreements may be difficult to enforce
and receivables difficult to collect; foreign customers and distributors may
have longer payment cycles, foreign countries may impose additional withholding
taxes or otherwise tax the Company's foreign income, impose tariffs or adopt
other restrictions on foreign trade; fluctuations in exchange rates may affect
product demand in relation to foreign competitors that may achieve advantageous
pricing based on the comparative strength of the United States dollar; United
States export licenses may be difficult to obtain; and intellectual property
rights in foreign countries may be difficult to enforce. Moreover, many foreign
countries have their own regulatory approval requirements for the sale of the
Company's products. As a result, the Company's introduction of new products into
international markets can be costly and time-consuming, and there can be no
assurance that the Company will be able to obtain the required regulatory
approvals on a timely basis, if at all. There can be no assurance that any of
these factors will not have a material adverse effect on the Company.
DEPENDENCE UPON KEY PERSONNEL
The success of the Company is dependent, in part, upon its ability to hire
and retain management, sales and research personnel who are in high demand and
are often subject to competing employment opportunities. The inability of the
Company to hire or retain key management, sales or research personnel could have
a material adverse effect on the Company. In addition, the development of the
Company's business has been primarily dependent upon the efforts of David B.
Schick, the Company's President and Chief Executive Officer. Although the
Company has expanded the depth of the expertise of its personnel, the loss of
Mr. Schick or turnover in other management positions could have a material
adverse affect on the Company. The Company does not have employment agreements
with any of its employees, including Mr. Schick, and there can be no assurance
that he or any other key employee will continue to be active with the Company.
The Company maintains and is the named insured party under a $1,000,000 life
insurance policy on Mr. Schick. There is no assurance that such insurance can be
maintained or will be adequate to meet the Company's future needs.
RECENT RAPID GROWTH; ABILITY TO MANAGE GROWTH
There can be no assurance that the growth experienced by the Company will
continue or that the Company will be able to achieve the growth contemplated by
its business strategy. Furthermore, there are significant risks, expenses and
difficulties associated with managing the operation and sustaining the
development of an expanding business. The Company's growth has placed, and will
continue to place, significant demands on the Company's financial and other
resources. The Company will be required to continually improve operating,
financial, and other systems, as well as to train, motivate, and manage its
employees. If the Company's management is unable to manage growth effectively or
new employees are unable to achieve appropriate levels of performance, it could
have a material adverse effect on the Company. See 'Management's Discussion and
Analysis of Financial Condition and Results of Operations.'
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CONTROL OF THE COMPANY BY CERTAIN STOCKHOLDERS
Upon the completion of the Offering, the executive officers and directors
of the Company will collectively beneficially own 42.84% of the outstanding
shares of Common Stock. Accordingly, they may effectively have the ability to
elect all of the directors of the Company and determine the outcome of all other
matters submitted for the approval of the stockholders. In particular, David B.
Schick and members of his immediate family will beneficially own approximately
28.8% of the outstanding shares of Common Stock and, accordingly, may be able to
exert significant influence over the Company. See 'Principal Stockholders' and
'Description of Capital Stock.'
ABSENCE OF PRIOR PUBLIC MARKET; POSSIBLE VOLATILITY OF STOCK PRICE
Prior to the Offering, there has been no public market for the Common
Stock. Although the Company has applied for listing of the Common Stock on the
Nasdaq National Market, there can be no assurance that an active trading market
will develop or be maintained. The initial public offering price of the Common
Stock will be determined by negotiation between the Company and the
Representatives (as defined herein) and may bear no relationship to the price at
which the Common Stock may trade after completion of the Offering. For factors
to be considered in determining the initial public offering price, see
'Underwriting.' The market prices for securities of medical technology companies
have historically been highly volatile. Future technological innovations or new
commercial products, results of clinical testing, changes in regulation,
litigation and public concerns as to product safety as well as period-to-period
fluctuations in financial performance and fluctuations in securities markets
generally could cause the market price of the Common Stock to fluctuate
substantially. In addition, the stock market prices of many medical technology
companies have experienced substantial fluctuations. Such price fluctuations
have often been unrelated to the operating performance of the affected
companies. These broad market fluctuations may adversely affect the market price
of the Common Stock.
POTENTIALLY SIGNIFICANT FLUCTUATIONS IN QUARTERLY OPERATING RESULTS; SEASONALITY
Several factors may significantly affect the Company's revenues, expenses
and results of operations from quarter to quarter, including the timing of new
product introductions by the Company or its competitors, developments regarding
new treatments for osteoporosis, developments in government reimbursement
policies, product mix, the ability to supply products to meet customer demand
and fluctuations in manufacturing costs. Consequently, quarterly results of
operations can be expected to fluctuate. Such fluctuations in quarterly results
of operation could adversely affect the market price of the Common Stock. See
'Management's Discussion and Analysis of Financial Condition and Results of
Operations.' In addition, the Company's CDR(Trademark) products are subject to
seasonal variations. Historically, the Company has experienced higher sales
growth rates in its first and third fiscal quarters than in its second and
fourth fiscal quarters. If such seasonal patterns were to substantially change,
it could have a material adverse affect on the Company.
NEED FOR ADDITIONAL FINANCING
The Company may require additional outside financing to expand its core
technology and develop new products, for working capital and for capital
expenditures. There can be no assurance that such financing will be available on
acceptable terms or at all. The inability of the Company to obtain such
financing could have a material adverse effect on the Company. In addition, the
Company may issue additional shares of Common Stock or other securities, whether
through public or private offerings. Such offerings would have a dilutive effect
on the percentage of ownership in the Company of any holder of shares of Common
Stock. See 'Dilution.' In the event the Company is unable to raise necessary
additional financing in the future, it may have to curtail its expansion
activities.
BROAD DISCRETION OVER USE OF PROCEEDS
The Company intends to repay the principal of, and accrued interest on, the
Merck Loan, to expand its research and development capabilities and to expand
its marketing and sales efforts from the proceeds of the Offering. Any remaining
balance of the net proceeds will be applied to general corporate and working
capital purposes. Due to the number and variability of factors that will be
analyzed before the Company determines how to use such net proceeds, the Company
will have broad discretion in allocating a significant portion of the net
proceeds without any notice to or approval of stockholders. Accordingly,
investors will not have the opportunity to evaluate the business, financial and
other relevant information which will be considered by the Company in
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<PAGE>
determining the application of such net proceeds. Pending their use for specific
business purposes, the net proceeds of the Offering will be invested in
short-term, investment grade, interest bearing securities. Such investments may
result in the Company obtaining lower yields on the funds than might be
achievable in the securities markets generally. See 'Use of Proceeds.'
DILUTION
Based upon the net tangible book value of the Company at March 31, 1997,
purchasers of Shares will experience immediate and substantial dilution of
$12.76 (80%) in net tangible book value per Share. Purchasers of Shares will
experience additional dilution if outstanding options and warrants are
exercised. See 'Dilution.'
DIVIDEND POLICY
The Company does not intend to declare or pay cash dividends on the Common
Stock in the foreseeable future. See 'Dividend Policy.'
PROVISIONS WITH POSSIBLE ANTI-TAKEOVER EFFECTS
The Company's Certificate of Incorporation and its By-Laws and certain
sections of the General Corporation Law of the State of Delaware (the 'DGCL')
contain provisions concerning voting, issuance of preferred stock, removal of
officers and directors and other matters which may have the effect of
discouraging, delaying or preventing a change in control of the Company. In
particular, Section 203 of the DGCL prohibits an 'interested stockholder' of a
Delaware corporation from engaging in a business combination with such Delaware
corporation for three years following the date such person became an interested
stockholder, subject to certain exceptions. See 'Description of Capital Stock.'
SHARES ELIGIBLE FOR FUTURE SALE
Upon the closing of the Offering, the Company will have outstanding
9,707,231 shares of Common Stock (9,969,731 shares, if the over-allotment option
is exercised in full). In addition, the Company has reserved 1,087,870 shares of
Common Stock for issuance upon the exercise of the Warrants, options granted
under the Option Plans and options granted prior to the implementation of the
Option Plans. Of such outstanding shares, the Shares will be freely tradeable in
the United States without restriction under the Securities Act, except that
shares purchased by an 'affiliate' of the Company, within the meaning of the
rules and regulations adopted under the Securities Act, may be subject to resale
restrictions. The remaining 7,957,231 outstanding shares of Common Stock and any
of the shares issued upon the exercise of the Warrants or pursuant to the Option
Plans may not be resold except pursuant to an effective registration statement
or Rule 144 or some other exemption from registration under the Securities Act.
Subject to the restrictions described below, the one-year period for 7,260,656
of such remaining shares of Common Stock has expired and are immediately
available for resale. The one-year period for 430,931 of such remaining shares
will expire on July 30, 1997, 116,173 of such remaining shares will expire on
August 29, 1997, with the remaining shares expiring on February 18, 1998. In
addition, the Company intends to register all of the reserved shares for resale
to the public. The Company and each of its executive officers and directors have
agreed that, for a period of 180 days after the date of this Prospectus, they
will not sell or otherwise dispose of any shares of Common Stock without the
prior written consent of Lehman Brothers Inc. In addition, pursuant to the terms
of the By-Laws, none of the Company's stockholders who were stockholders of the
Company prior to the Offering will be permitted to sell or otherwise dispose of
any shares of Common Stock for a period of 180 days after the date of this
Prospectus without the prior written consent of the Company. The Company has
agreed that no such consent will be given without the prior written consent of
Lehman Brothers Inc. In addition, pursuant to the terms of the Option Plans and
the Warrants, any shares of Common Stock issuable upon the exercise of Options
or Warrants will not be transferable for a period of 180 days after the date of
this Prospectus without the prior written consent of the Company. The Company
has agreed that no such consent will be given without the prior written consent
of Lehman Brothers Inc. No prediction can be made as to the effect, if any, that
future sales of shares or the availability of shares for future sale will have
on the market price of the Common Stock prevailing from time to time. Sales of
substantial amounts of Common Stock in the public market, or the perception that
such sales could occur, could adversely affect prevailing market prices for the
Common Stock and could impair the Company's ability to raise capital through an
offering of its equity securities. See 'Shares Eligible for Future Sale' and
'Underwriting.'
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THE COMPANY
The Company's business was founded in 1992 by David B. Schick, Chairman of
the Board, Chief Executive Officer and President of the Company, Jonathan
Singer, Vice President--Engineering and Daniel Neugroschl, Vice
President--Operations and Advanced Development. Prior to the date of this
Prospectus, the Company's business has been conducted by Schick Technologies,
Inc., a New York corporation. In April 1997, a new corporation, Schick
Technologies, Inc., and its wholly owned subsidiary, STI Acquisition Corp.
('STI'), were formed under the DGCL for the purpose of forming a holding company
and changing the state of incorporation of the Company. Prior to the date of
this Prospectus, the existing New York corporation will merge with STI and will
be the survivor of such merger. As a result of such merger, the shareholders,
warrantholders and optionees of the existing New York corporation will become
stockholders, warrantholders and optionees of the new Delaware corporation
(which will be the issuer of the Shares), and the existing New York corporation
will become a wholly owned subsidiary of the new Delaware corporation. In
connection with such merger, shareholders of the existing New York corporation
will receive 2.8 shares of Common Stock of Schick Technologies, Inc., the new
Delaware corporation, for each share of common stock of the existing New York
corporation held by such shareholders immediately prior to the merger and other
adjustments will be made so that the Option Plans, Certificate of Incorporation,
By-Laws and Warrants will conform to the description thereof contained herein.
The Company's principal executive offices are located at 31-00 47th Avenue,
Long Island City, New York 11101. Its telephone number is (718) 937-5765 and its
World Wide Web address is http://www.schicktech.com. Information posted on the
Company's Web site does not constitute a part of this Prospectus.
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USE OF PROCEEDS
The net proceeds to be received by the Company from the Offering (assuming
an initial public offering price of $16.00 per share) are estimated to be
approximately $25.4 million ($29.3 million, if the over-allotment option is
exercised in full), after deducting estimated underwriting discounts and
commissions and estimated expenses of the Offering payable by the Company.
The Company intends to use the net proceeds from the Offering primarily to:
(i) repay the principal of the Merck Loan (as defined below) in the amount of
$1,512,833 and accrued interest thereon which, at March 31, 1997, totaled
$101,654, (ii) expand its research and development capabilities; and (iii)
expand its marketing and sales efforts. Any remaining balance of the net
proceeds will be applied to working capital and general corporate purposes.
Pending such uses, the Company intends to invest the net proceeds in short-term,
investment grade, interest bearing securities.
On August 7, 1996, the Company entered into a secured term loan agreement
with Merck (the 'Merck Agreement') pursuant to which Merck loaned approximately
$1.5 million to the Company (the 'Merck Loan'). Although the maturity date of
the Merck Loan is February 7, 1999, under its terms the Company is required to
prepay the Merck Loan in full upon the effectiveness of the Registration
Statement. Interest on the Merck Loan accrues at a rate of two percentage points
above the prime rate as reported in The Wall Street Journal (adjusted annually).
At March 31, 1997, the interest rate on the Merck Loan was 10.25%. The Merck
Loan is secured by a pledge of the Company's inventory and accounts receivable.
The proceeds from the Merck Loan have been used by the Company for the
development of accuDEXA(Trademark) and to obtain any necessary regulatory
approvals. See 'Business--Merck Agreement.'
From time to time, the Company evaluates potential acquisitions of
businesses and product lines which would complement or enhance the business of
the Company. Depending on the cash requirements of any such acquisitions, the
Company may finance such acquisitions, in whole or in part, with a portion of
the net proceeds of the Offering. The Company, however, has no present
understanding, commitment or agreement with respect to any acquisition. There
can be no assurance that any such acquisition will occur.
DIVIDEND POLICY
The Company has not declared or paid any cash dividends on the Common Stock
since its formation. The Company currently intends to retain future earnings to
finance the operations and expansion of its business and, accordingly, does not
anticipate paying any cash dividends on the Common Stock in the foreseeable
future. The Company is in preliminary negotiations with various senior lenders
to obtain a credit facility, which may prohibit or restrict the payment of
dividends or other distributions by the Company to its stockholders. Subject to
any such limitations, the payment of cash dividends on the Common Stock will be
within the sole discretion of the Board of Directors and will depend upon the
earnings, capital requirements and financial position of the Company, applicable
requirements of the DGCL, general economic conditions and other factors
considered relevant by the Board of Directors.
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CAPITALIZATION
The following table sets forth the actual cash and cash equivalents and
capitalization of the Company at March 31, 1997, and as adjusted to give effect
to the sale of the Shares (assuming an initial public offering price of $16.00
per share), less estimated underwriting discounts and commissions and estimated
expenses of the Offering payable by the Company, and the initial application of
the estimated net proceeds therefrom as described in 'Use of Proceeds.' This
table should be read in conjunction with 'Management's Discussion and Analysis
of Financial Condition and Results of Operation' and the financial statements
and accompanying notes which appear elsewhere in the Prospectus.
MARCH 31, 1997
-----------------------------
ACTUAL AS ADJUSTED(3)
----------- --------------
Cash and cash equivalents...................... $ 1,710,429 $ 25,535,942
----------- --------------
----------- --------------
Debt (including current portion):
Notes payable................................ $ 1,512,833 --
Accrued interest on notes payable............ 101,654 --
Capital lease obligations.................... 109,191 109,191
----------- --------------
Total debt................................ 1,723,678 109,191
Stockholders equity
Preferred Stock, $.01 par value; 2,500,000
shares authorized; no shares issued or
outstanding...............................
Common Stock, $.01 par value; 25,000,000
shares authorized; 7,957,231 shares issued
and outstanding; 9,707,231 issued and
outstanding as adjusted(1)(2)............. 79,572 97,072
Additional paid-in capital................... 7,562,766 32,950,266
Accumulated deficit.......................... (1,555,359) (1,555,359)
----------- --------------
Total stockholders' equity:............... 6,086,979 31,491,979
----------- --------------
Total capitalization.................... $ 7,810,657 $ 31,601,170
----------- --------------
----------- --------------
- ------------------------
(1) Excludes (i) 470,400 shares of Common Stock reserved for issuance upon the
exercise of options under the 1996 Employee Stock Option Plan, under which
options covering 74,953 shares at a weighted average exercise price of $7.14
per share are outstanding (see 'Management--1996 Employee Stock Option
Plan'), (ii) 35,000 shares of Common Stock reserved for issuance upon the
exercise of options under the Directors Stock Option Plan, of which none
have been granted (see 'Management--Directors Stock Option Plan'), (iii)
526,470 shares of Common Stock reserved for issuance upon the exercise of
the Warrants at exercise prices ranging from $7.86 to $8.93 per share and
(iv) 56,000 shares reserved for issuance upon the exercise of options
which were granted prior to the implementation of the 1996 Employee Stock
Option Plan at an exercise price of $1.79 per share. (see 'Description of
Capital Stock--Warrants').
(2) Reflects the restructuring and recapitalization described in Note 15 to the
financial statements.
(3) As adjusted to give effect to (i) the sale of the Shares, net of expenses,
at an assumed initial public offering price of $16.00 per share and (ii) the
repayment of the Merck Loan in the principal amount of $1,512,833 and
accrued but unpaid interest thereon. See 'Use of Proceeds.'
16
<PAGE>
DILUTION
Dilution is the amount by which the initial public offering price paid by
the purchasers of the Shares will exceed the net tangible book value per share
of Common Stock after the Offering. The net tangible book value per share of
Common Stock is determined by subtracting the total liabilities of the Company
from the total book value of the tangible assets of the Company and dividing the
difference by the number of shares of Common Stock deemed to be outstanding on
the date as of which such book value is determined.
At March 31, 1997, the net tangible book value of the Company was
$6,051,979 and the net tangible book value per share of Common Stock was $0.76.
Assuming that the sale of the Shares had occurred on March 31, 1997 at an
initial public offering price of $16.00 per Share and payment of estimated
underwriting discounts and commissions and estimated expenses of the Offering
payable by the Company, the pro forma net tangible book value of the Company at
March 31, 1997 would have been $31,491,979 million, or $3.24 per share of Common
Stock. See 'Capitalization.' This represents an immediate increase in net
tangible book value of $2.49 per share held by existing stockholders. The
immediate dilution to the purchasers of the Shares is illustrated in the
following table:
Assumed initial public offering price per share... $ 16.00
Net tangible book value per share at March 31,
1997......................................... $0.76
Increase attributable to purchase of shares in
the Offering................................. 2.48
-----
Pro forma net tangible book value per share after
the Offering(1)................................. $ 3.24(2)
-------
Dilution per share to purchasers of the Shares.... $ 12.76(2)
-------
-------
The following table sets forth, on a pro forma basis at March 31, 1997, the
number of shares of Common Stock purchased from the Company, the total
consideration paid to the Company and the average price per share paid by
existing stockholders and by purchasers of the Shares (assuming an initial
public offering price of $16.00 per share) before deducting the estimated
underwriting discounts and commissions and estimated expenses of the Offering
payable by the Company:
<TABLE>
<CAPTION>
SHARES TOTAL
PURCHASED CONSIDERATION AVERAGE
-------------------- ---------------------- PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
--------- ------- ----------- ------- ----------
<S> <C> <C> <C> <C> <C>
Existing stockholders...... 7,957,231 82.0% $ 7,284,800 20.7% $ 0.92
Purchasers of the Shares... 1,750,000 18.0 28,000,000 79.3 16.00
--------- ------- ----------- ------- ----------
Total.................... 9,707,231 100.0% $35,284,800 100.0% $ 3.63
--------- ------- ----------- ------- ----------
--------- ------- ----------- ------- ----------
</TABLE>
The preceding tables do not give effect to the exercise of Warrants, stock
options granted prior to the implementation of the Option Plans or stock options
granted under the Option Plans outstanding on the date hereof. To the extent
that Warrants, stock options granted prior to the implementation of the Option
Plans or stock options granted under the Option Plans outstanding on the date
hereof are exercised, there will be further dilution to purchasers of the
Shares. See 'Management--1996 Employee Stock Option Plan'; '--Directors Stock
Option Plan' and 'Description of Capital Stock--Warrants.'
- ------------------
(1) Pro forma net tangible book value per share after the Offering gives effect
to (i) the sale of the Shares, net of expenses, at an assumed initial
offering price of $16.00 (the mid-point of the range set forth on the cover
page) and (ii) the repayment of the Merck Loan in the principal amount of
$1,512,833 and accrued but unpaid interest thereon. See 'Use of Proceeds.'
(2) If the Underwriter's over allotment option is exercised in full, the pro
forma net tangible book value per share would be $3.55 and the dilution per
share to purchasers of the shares would be $12.45. See 'Underwriting.'
17
<PAGE>
SELECTED FINANCIAL DATA
The selected financial data presented below for, and at the end of, each of
the years in the three year period ended March 31, 1997 are derived from the
financial statements of the Company, which have been audited by Price Waterhouse
LLP, independent accountants and are included elsewhere in this Prospectus. The
selected financial data set forth below as of and for the year ended March 31,
1994 are derived from audited financial statements not included in this
Prospectus. The selected financial data set forth below as of and for the year
ended March 31, 1993 are derived from unaudited financial statements. In the
opinion of management, the unaudited financial statements include all material
adjustments (consisting only of normal, recurring adjustments) necessary for a
fair presentation of the financial position and results of operations for the
period. The data presented below should be read in conjunction with
'Management's Discussion and Analysis of Financial Condition and Results of
Operations' and the financial statements and accompanying notes appearing
elsewhere in this Prospectus.
<TABLE>
<CAPTION>
YEAR ENDED MARCH 31,
-----------------------------------------------------------------------
1993 1994 1995 1996 1997
----------- ----------- ----------- ----------- -----------
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenue, net............... $ -- $ 29 $ 2,726 $ 6,804 $ 16,101
Cost of sales.............. -- 14 1,501 3,343 8,021
----------- ----------- ----------- ----------- -----------
Gross profit............ -- 15 1,225 3,461 8,080
----------- ----------- ----------- ----------- -----------
Operating expenses:
Selling and marketing... -- 158 517 1,620 4,961
General and
administrative........ 166 121 560 1,388 2,088
Research and
development........... 247 393 150 458 1,418
----------- ----------- ----------- ----------- -----------
Total operating
expenses........... 413 672 1,227 3,466 8,467
----------- ----------- ----------- ----------- -----------
Loss from operations....... (413) (657) (2) (5) (387)
Total other income
(expense)............... 2 1 (22) (108) 35
----------- ----------- ----------- ----------- -----------
Net loss................ $ (411) $ (656) $ (24) $ (113) $ (352)
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
Net loss per common
share(1)(2)............. $ (.08) $ (.10) -- $ (.02) $ (.04)
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
Weighted average common
shares
outstanding(1)(2)....... 4,891,784 6,370,095 7,050,798 7,219,385 8,124,787
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
</TABLE>
<TABLE>
<CAPTION>
MARCH 31,
------------------------------------------------------
1993 1994 1995 1996 1997
----------- ------- ------- ------- ------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents..... $ 153 $ 25 $ 128 $ 525 $1,710
Working capital............... 98 (33) 35 1,240 5,518
Total assets.................. 190 321 1,615 4,395 11,060
Total liabilities............. 54 196 1,289 3,026 4,973
Accumulated defecit........... (411) (1,067) (1,091) (1,203) (1,555)
Stockholders' equity.......... 136 124 326 1,369 6,087
</TABLE>
- ------------------
(1) For information concerning the computation of net loss per share and
weighted average number of common shares outstanding, see Note 2 to the
financial statements.
(2) Reflects the restructuring and recapitalization described in Note 15 to the
financial statements.
18
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
GENERAL
The Company designs, develops and manufactures digital imaging systems and
devices for the dental and medical markets. In the field of dentistry, the
Company has developed, and currently manufactures and markets, an intra-oral
digital radiography system. The Company has also developed a bone mineral
density measurement device to assist in the diagnosis of osteoporosis, which is
scheduled to be introduced in the second half of 1997, pending FDA marketing
clearance. In addition, the Company is developing large-area radiographic
imaging devices for digital mammography.
From its inception in April 1992 through March 1994, the Company was
primarily engaged in product development and product testing, and the
establishment of strategic relationships with vendors. The Company also
undertook a marketing analysis of the dental market and developed its marketing
strategy. The Company incurred cumulative losses during this period of $1.1
million.
In March 1994, after receiving FDA 510(k) marketing clearance, the Company
began marketing and selling its CDR(Trademark) system. The Company's revenues
are primarily derived from sales of its CDR(Trademark) products and, to a lesser
extent, from sales of its CDRCam(Trademark) and extended warranties on the
CDR(Trademark) products. The Company recognizes revenue on its CDR(Trademark)
products at the time of shipment to its customers. Revenues from the sales of
extended warranties are recognized on a straight-line basis over the life of the
extended warranty which is generally a one-year period. The Company utilizes a
direct sales force for sales of its products within the United States.
International sales are made through a network of independent foreign
distributors. In fiscal 1995, fiscal 1996 and fiscal 1997, sales to customers
within the United States were approximately 73%, 69% and 76% of total revenues,
respectively. The Company's international sales are made primarily to
distributors in Western Europe, Russia, Australia and South America. The Company
intends to expand its business in other international markets, including Asia.
All of the Company's sales are denominated in United States dollars.
Cost of sales consists of raw materials and computer components,
manufacturing labor, facilities overhead, product support, warranty costs and
installation costs. The Company procures semiconductor wafers, a significant
component of its products, from a single supplier. The Company believes that
sourcing from a single supplier provides certain competitive advantages to the
Company. However, an interruption of this supply could have a material adverse
effect on the Company's results of operations. See 'Risk Factors--Dependence on
Key Suppliers.' The Company believes that cost of sales as a percentage of
revenues in future periods will decrease due to the introduction of new products
and manufacturing technologies, and higher manufacturing volumes of its existing
products. However, as the Company introduces new products, cost of sales may
initially be a higher percentage of net revenues until certain product
efficiencies can be achieved.
Operating expenses include selling and marketing expenses, general and
administrative expenses and research and development expenses. Selling and
marketing expenses consist of salaries, advertising, promotional and sales
events expenses. General and administrative expenses include executive salaries,
professional fees, facilities, overhead, accounting and human resources, and
general office administration expenses. Research and development expenses are
comprised of salaries, facilities overhead and testing materials used for basic
scientific research and the development of new and improved products and their
uses. All research and development costs, including software development costs
associated with new products and product enhancements, have been expensed as
incurred. While the Company continues to expand its selling and marketing
activities, develop new products and enhance existing products, it anticipates
that its operating expenses as a percentage of revenues will decrease.
19
<PAGE>
RESULTS OF OPERATIONS
The following table sets forth, for the fiscal years indicated, certain
items from the Statement of Operations Data expressed as a percentage of net
revenues:
YEAR ENDED MARCH 31,
-----------------------
1995 1996 1997
----- ----- -----
Revenue, net.................. 100.0% 100.0% 100.0%
Cost of sales................. 55.1 49.1 49.8
----- ----- -----
Gross profit.................. 44.9 50.9 50.2
Operating expenses:
Selling and marketing....... 19.0 23.8 30.8
General and
administrative........... 20.5 20.4 13.0
Research and development.... 5.5 6.7 8.8
Fiscal Year Ended March 31, 1997 as Compared to Fiscal Year Ended March 31, 1996
Net revenues increased 136.6% to $16.1 million in fiscal 1997 from $6.8
million in fiscal 1996. This increase was attributable principally to an
increase in the number of CDRTM products sold which was positively affected by
the Company's increased expenditures on sales and marketing, personnel
recruiting, selling events and other promotional activities. The Company
believes that net revenues will continue to increase as the Company sells more
CDRTM products and introduces new products.
Cost of sales increased 139.9% to $8.0 million (49.8% of net revenues) in
fiscal 1997 from $3.3 million (49.1% of net revenues) in fiscal 1996. Cost of
sales as a percentage of revenues was relatively stable in fiscal 1997 as
improved manufacturing efficiencies and fixed overhead utilization were
partially offset by increases in the cost of certain computer components of the
CDRTM system as well as increased customer service costs. In addition, in fiscal
1997, the Company recognized a non-recurring charge of approximately $114,000
related to excess inventory of a specific component of its CDRTM system.
Selling and marketing expenses increased 206.3% to $5.0 million (30.8% of
net revenues) in fiscal 1997 from $1.6 million (23.8% of net revenues) in fiscal
1996. This increase was attributable principally to the hiring and training of
new salespeople as the Company completed the establishment of its national sales
force. In addition, the Company significantly increased its promotional
activities to create greater market awareness, and developed market strategies
for new products.
General and administrative expenses increased 50.4% to $2.1 million (13.0%
of net revenues) in fiscal 1997 from $1.4 million (20.4% of net revenues) in
fiscal 1996. This decrease as a percentage of revenues was attributable
principally to increases in sales of the Company's products and partially offset
by growth in administrative expenditures. This decrease was partially offset by
an increase in legal fees associated with certain patent infringement litigation
in the amount of $509,000.
Expenses for research and development in fiscal 1997 increased 209.5% to
$1.4 million (8.8% of net revenues) from $458,000 (6.7% of net revenues) in
fiscal 1996. This increase was attributable principally to increased research
and development expenses associated with the development of a bone mineral
density measurement device and enhancements to the CDR(Trademark) system, as
well as the CDRCam(Trademark), and initial development of a mammography system.
All research and development costs are expensed as incurred.
Interest income increased to $196,000 in fiscal 1997 from $15,000 in fiscal
1996. This increase was due to higher cash balances and investments in
interest-bearing securities which were purchased from the proceeds of the May
1996 equity private placement and from the proceeds of the convertible
promissory notes issued by the Company in connection with a June 1995 private
placement (the '12.5% Notes Payable'). Interest expense increased to $161,000 in
fiscal 1997 from $123,000 in fiscal 1996. Interest expense was attributable
principally to the Merck Loan and the 12.5% Notes Payable prior to their
conversion into Common Stock at various dates in fiscal 1997.
20
<PAGE>
Fiscal Year Ended March 31, 1996 Compared to Fiscal Year Ended March 31, 1995
Net revenues increased 149.6% to $6.8 million in fiscal 1996 from $2.7
million in fiscal 1995. This increase was due primarily to an increase in the
number of CDRTM systems sold which was positively affected by the Company's
increased expenditures on hiring of sales and marketing personnel, selling
events and other promotional activities. Furthermore, during the second half of
fiscal 1995, the Company established relationships with additional international
distributors. As a result, foreign revenues as a percentage of net revenues
increased to 31.5% in fiscal 1996 from 27.0% in fiscal 1995.
Cost of sales increased 122.8% to $3.3 million (49.1% of net revenues) in
fiscal 1996 from $1.5 million (55.1% of net revenues) in fiscal 1995. This
decrease as a percentage of net revenues was primarily due to increased
manufacturing efficiencies, and increased production yields and economies of
scale generated by an increase in the number of CDR(Trademark) products sold.
Selling and marketing expenses increased 213.3% to $1.6 million (23.8% of
net revenues) in fiscal 1996 from $517,000 (19.0% of net revenues) in fiscal
1995. This increase was attributable principally to the hiring of additional
personnel and support staff in connection with the Company's establishment of
its national sales force.
General and administrative expenses increased 147.9% to $1.4 million (20.4%
of net revenues) in fiscal 1996 from $560,000 (20.5% of net revenues) in fiscal
1995.
Research and development expenses increased 206.2% to $458,000 (6.7% of net
revenues) in fiscal 1996 from $150,000 (5.5% of net revenues) in fiscal 1995.
This increase was primarily due to efforts to enhance existing products and
early-stage research in connection with products under development.
Interest expense increased to $123,000 in fiscal 1996 from $22,000 in
fiscal 1995, primarily due to the 12.5% Notes Payable.
QUARTERLY RESULTS OF OPERATIONS; SEASONALITY
The following table sets forth certain unaudited quarterly financial
information for each of the eight quarters in the period ended March 31, 1997.
This information has been presented on the same basis as the audited financial
statements appearing elsewhere in this Prospectus and in the opinion of the
Company, includes all adjustments (consisting only of normal, recurring
adjustments) necessary to present fairly the unaudited quarterly results. The
quarterly results should be read in conjunction with the audited financial
statements of the Company and related notes thereto included elsewhere in the
Prospectus. The operating results for any quarter are not necessarily indicative
of the operating results for any future period. In addition, the Company's
CDR(Trademark) products are subject to seasonal variations. Historically, the
Company has experienced higher sales growth rates in its first and third fiscal
quarters than its second and fourth fiscal quarters. If such seasonal patterns
were to substantially change, it could have a material adverse effect on the
Company.
THREE MONTHS ENDED
---------------------------------------------
JUNE 30, SEPT. 30, DEC. 31, MAR. 31,
1996 1996 1996 1997
-------- --------- -------- --------
(IN THOUSANDS)
STATEMENT OF OPERATIONS DATA:
Revenue, net................. $2,627 $ 3,160 $4,954 $5,360
Cost of sales................ 1,440 1,631 2,360 2,590
-------- --------- -------- --------
Gross profit................. 1,187 1,529 2,594 2,770
Gross profit margin.......... 45.2% 48.4% 52.4% 51.7%
Operating expenses........... 1,483 1,827 2,592 2,565
-------- --------- -------- --------
(Loss) income from
operations................. (297) (297) 3 205
Net (loss) income............ $ (317) $ (294) $ 20 $ 239
-------- --------- -------- --------
-------- --------- -------- --------
21
<PAGE>
The Company may in the future experience significant quarter-to-quarter
fluctuations in its results of operations, which may result in volatility in the
price of the Company's Common Stock. Quarterly results of operations may
fluctuate as a result of a variety of factors, including the demand for the
Company's products, the introduction of new or enhanced products by the Company
or its competitors, market acceptance of new products, the timing of significant
marketing programs, the commencement of new product development programs, the
extent and timing of the hiring of additional personnel, competitive conditions
in the industry and general economic conditions. Due to the foregoing factors,
it is likely that in one or more future quarters the Company's operating results
will be below the expectations of public market analysts and investors. Such an
event could have a material adverse effect on the price of the Common Stock.
LIQUIDITY AND CAPITAL RESOURCES
The Company had an accumulated deficit of $1.6 million at March 31, 1997
and has not yet generated positive cash flow from operations in any fiscal year.
The Company has financed its operations to date primarily through five private
placements of debt and equity securities and cash generated from product sales.
At March 31, 1997, the Company had $1.7 million in cash and cash equivalents,
$2.3 million in short-term investments and $5.5 million in working capital. The
Company undertook financing activities which provided it with $5.3 million in
fiscal 1997, comprised of $4.3 million from the Company's May 1996 equity
private placement and $1 million of proceeds from the issuance of a long-term
note to Merck. Cash utilized in operations was $273,000 in fiscal 1997 and
$737,000 in fiscal 1996. Cash used for capital expenditures was $1.1 million for
fiscal 1997 and $570,000 for fiscal 1996. The increase was due primarily to the
purchase of upgraded production equipment, leasehold improvements and the
acquisition of additional office equipment due to increased staffing levels. As
the Company introduces new products, it expects to invest in additional
production equipment and leasehold improvements.
The Company's funds are currently invested in money market instruments and
United States Treasury and government agency interest-bearing obligations. Such
investments reflect the Company's current policy regarding the investment of
liquid assets, which is to seek a reasonable rate of return while emphasizing
safety, liquidity and preservation of capital.
The Company believes that its existing capital resources are adequate to
meet its cash requirements for the foreseeable future. There can be no
assurance, however, that changes in the Company's plans or other events
affecting the Company's operations will not result in accelerated or unexpected
cash requirements. The Company's future capital requirements will depend on
numerous factors, including (i) the progress of its research and product
development programs, including clinical studies, (ii) the effectiveness of
product commercialization activities and marketing agreements, including the
development and progress of sales and marketing efforts and manufacturing
operations, (iii) the ability of the Company to maintain existing distributor
agreements and establish and maintain new distributor agreements, (iv) the costs
involved in preparing, filing, prosecuting, defending and enforcing intellectual
property rights, including lawsuits involving Trophy S.A. and Radworks, and
complying with regulatory requirements, (v) the effect of competing
technological and market developments and (vi) general economic conditions. If
the net proceeds of the Offering, together with the Company's currently
available funds and internally generated cash flow, are not sufficient to
satisfy its financing needs, the Company will be required to seek additional
funding through bank borrowings and additional public or private sales of its
securities, including equity securities, or through other arrangements with
marketing partners. Although the Company has no credit facility or other
committed sources of capital, it is engaged in preliminary discussions with
various senior lenders regarding a line of credit. There can be no assurance
that additional funds, if required, will be available to the Company on
favorable terms, if at all. See 'Risk Factors--Need For Additional Financing'
and 'Use of Proceeds.'
The Company does not anticipate a material cash requirement for income
taxes in fiscal 1997. At March 31, 1997, the Company's net operating loss
carryforward was $560,000, portions of which begin to expire in 2008.
The relatively moderate rate of inflation over the past several years has
not had a material impact on the Company's revenues or profitability.
22
<PAGE>
RECENTLY ISSUED ACCOUNTING STANDARDS
Statement of Financial Accounting Standards No. 123, 'Accounting for
Stock-Based Compensation Plans' ('SFAS 123'), was issued in October 1995. SFAS
123 was adopted by the Company in fiscal 1997. As permitted by SFAS 123, the
Company plans to continue to use Accounting Principles Board Opinion No. 25,
'Accounting for Stock Issued to Employees,' in accounting for its stock options.
Certain pro forma and other information is disclosed in the annual financial
statements as if the Company had measured compensation costs in a manner
consistent with SFAS 123.
In February 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 128, 'Earnings per Share' ('SFAS 128'),
which requires presentation of basic earnings per share ('Basic EPS') and
diluted earnings per share ('Diluted EPS') by all entities that have publicly
traded common stock or potential common stock (options, warrants, convertible
securities or contingent stock arrangements). SFAS 128 also requires a
presentation of earnings per share by an entity that has made a filing or is in
the process of filing with a regulatory agency in preparation for the sale of
those securities in a public market. Basic EPS is computed by dividing income
available to common stockholders by the weighted-average number of common shares
outstanding during the period. Diluted EPS gives effect to all dilutive
potential common shares outstanding during the period. The computation of
Diluted EPS does not assume conversion, exercise or contingent exercise of
securities that would have an antidilutive effect on earning. SFAS 128 is
effective for both interim and annual periods ending after December 15, 1997.
The Company does not believe that the effect on the Company's earnings per share
resulting from the adoption of SFAS 128 will be material.
23
<PAGE>
BUSINESS
Schick Technologies, Inc. designs, develops and manufactures innovative
digital imaging systems and devices for the dental and medical markets. The
Company's products, which are based on proprietary digital imaging technologies,
create instant high resolution radiographs with reduced levels of radiation. In
the field of dentistry, the Company has developed, and currently manufactures
and markets, the leading intra-oral digital radiography system. The Company has
also developed an inexpensive and easy-to-operate bone mineral density ('BMD')
measurement device to assist in the diagnosis of osteoporosis. This device is
scheduled for introduction in the second half of 1997, pending FDA marketing
clearance, and will be sold for use in primary care physicians' offices. In
addition, the Company is developing large-area radiographic imaging devices for
digital mammography. The Company is also applying its technology to developing
low-cost, large-area radiographic imaging systems using its proprietary
technology for medical applications and industrial markets.
The Company's CDR(Trademark) computed dental radiography imaging system was
introduced in March 1994 and has become the leading product in its field. As of
March 31, 1997, the Company had sold over 3,200 CDR(Trademark) systems for use
in dental offices, hospitals and universities. The CDR(Trademark) system
produces instant, full size, high resolution dental x-ray images on a color
computer monitor, without film or the need for chemical development, and with a
radiation dose that is approximately 10% of that required for conventional x-ray
film. The CDR(Trademark) system uses an intra-oral sensor to capture the x-ray
image. Once captured, the x-ray image is transmitted to a computer where it is
permanently stored as part of the patient's x-ray records and can be analyzed
using diagnostic software developed by the Company. The Company's
CDRCam(Trademark), an intra-oral camera which fully integrates with the
CDR(Trademark) system, was introduced in early 1997. The Company believes that
the potential market for dental digital radiography products exceeds $4 billion
annually.
The Company believes that its accuDEXA(Trademark) device measures BMD more
quickly, accurately and easily than any comparable BMD measurement device
currently on the market with a minimal radiation dosage. The device is a highly
precise point-of-treatment diagnostic tool for use in the primary care
physician's office as part of a patient's regular physical examination. In
connection with the development of accuDEXA(Trademark), the Company entered into
an agreement with Merck pursuant to which Merck agreed to provide the Company
with financing and to develop certain clinical protocols. See '--Merck
Agreement.' The Company filed its 510(k) application with the FDA in May 1997
and, pending FDA marketing clearance, the Company plans to introduce this
product in the second half of 1997. The Company believes that the potential
market for the accuDEXA(Trademark) exceeds $3 billion.
The Company is developing a digital mammography sensor which it believes
will offer high quality diagnostic capability at a substantially lower cost than
other available devices. The Company intends to produce an 8 x 8 cm 'spot'
mammography sensor prototype by the end of 1997, and, subsequently, a 24 x 30 cm
'full field' sensor. The Company is also developing other digital imaging
products for additional medical and industrial applications.
The Company's CDR(Trademark) dental products are sold in the United States,
via its direct sales force, and abroad, via independent regional distributors.
The Company intends to sell accuDEXA(Trademark) pursuant to an OEM sales
agreement with Norland, by which Norland will sell accuDEXA(Trademark) under its
own trade name. The Company also intends to sell accuDEXA(Trademark) through a
direct sales force and other established independent distributors and
manufacturers of medical and radiological equipment. The Company intends to sell
its mammography devices through established manufacturers in the mammography
market. See '--Sales and Marketing.'
The Company's products are based on its proprietary enhanced CCD and APS
imaging technologies. The Company's CDR(Trademark) system is made using an
enhanced, low-cost, large-area, high resolution CCD device. APS allows the
fabrication of large-area imaging devices with high resolution at a fraction of
the cost of traditional technologies. APS technology was originally developed by
Cal Tech and is licensed to the Company for a broad range of health care
applications. See 'Business--Patents, Trade Secrets and Proprietary Rights.'
The Company's objective is to be the leading provider of high resolution,
low-cost digital radiography products. The Company plans to leverage its
technological advantage in the digital imaging field to penetrate a broad range
of diagnostic imaging markets. The Company believes that its proprietary
technologies and expertise in electronics, imaging software and advanced
packaging will enable it to compete successfully in these markets.
24
<PAGE>
Key elements of the Company's strategy include (i) expanding market leadership
in dental digital radiography through expanded sales channels, further product
enhancements, and increased direct sales, OEM and marketing activities; (ii)
introducing accuDEXA(Trademark) to the bone densitometry market to aid in the
diagnosis of osteoporosis through a combination of direct sales and other
distribution channels; (iii) introducing new products based on patented and
proprietary APS technology for digital mammography, other medical applications
and industrial markets; and (iv) expanding international marketing channels for
existing and new products.
INDUSTRY OVERVIEW
Conventional Radiography
X-ray imaging, or radiography, is widely used as a basic diagnostic
technique in a broad range of medical applications. To produce a conventional
radiograph, a film cassette is placed behind the anatomy to be imaged. A
generator, which produces high energy photons known as x-rays, is positioned
opposite the film cassette. The transmitted x-rays pass through soft tissue,
such as skin and muscle, and are absorbed by harder substances, such as bone.
These x-rays then form a latent image upon the film. After exposure, the film is
passed through a series of chemicals and then dried.
Film, however, has certain inherent limitations, including the substantial
time, operating expense, inconvenience and uncertainty associated with film
processing, as well as the cost of disposal of waste chemicals and the need for
compliance with environmental regulations. Furthermore, the radiation dosage
levels required to assure adequate image quality in conventional film raise
concerns regarding the health risks associated with exposure to radiation. Also,
conventional film images cannot be electronically retrieved from patient records
or transmitted to health care providers or insurance carriers at remote
locations, a capability which has become increasingly important in today's
managed care environment. While x-ray scanning systems convert x-rays into
digital form, they add to the substantial time and expense associated with the
use of conventional film and do not eliminate the drawbacks of film processing.
Digital radiography products have been developed to overcome the
limitations of conventional film. These systems replace the conventional film
cassette with an electronic receptor which directly converts the incident x-rays
to digital images. The first system to employ certain aspects of this technique
was Computed Radiography(Trademark) ('CR'), a 'near real time' system, in which
a laser scanner reads the x-ray image from a specially designed cassette. While
CR allows the images to be electronically displayed and stored, it does not
achieve instant results, and employs a large, costly scanning system. Other
technologies which allow for instant acquisition of digital x-rays have been
developed, including CCD arrays and amorphous silicon panels, neither of which
is well suited for imaging large areas due, respectively, to high cost and
limited resolution.
Dental Industry
Dentists, who generally perform all of their own radiology work, represent
the single largest group of radiologists in the world and the dental industry
is, in terms of unit volume, the largest consumer of radiographic products and
equipment.
The Company believes that there is a potential market for approximately 1.1
million digital dental radiography devices worldwide. According to the American
Dental Association, there are approximately 150,000 practicing dentists in the
United States and each of them, on average, operates 2.5 radiological units,
creating a potential market of 375,000 digital dental radiography devices in the
United States. In addition, there are approximately 600,000 dentists practicing
in the world's major health care markets outside of the United States and each
of them, on average, operates 1.25 radiological units, creating a potential
market of 750,000 additional devices.
Dentists have a particularly strong motivation to adopt digital
radiography. Radiographic examinations are an integral part of routine dental
checkups and the dentist is directly involved in the film development process.
The use of digital radiography eliminates delays in film processing, thus
increasing the dentist's potential revenue stream and efficiency, and reduces
overhead expenses. The use of digital radiography also allows dentists to more
effectively communicate diagnosis and treatment plans to patients, which the
Company believes has the potential to increase the rate of patients' treatment
acceptance and resulting revenues. Finally, the dosage required to
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produce an intra-oral dental x-ray, which is high when compared with other
medical radiographs, can be reduced by up to 90% through the use of digital
radiography.
Osteoporosis Diagnosis
Measurement of BMD is an essential component in the diagnosis and
monitoring of osteoporosis. Osteoporosis is a disease that causes progressive
loss of bone mass which, in serious cases, results in bone fractures and even
death. Osteoporosis can develop over the course of many years without apparent
symptoms, until bone is sufficiently degenerated and fractures occur. The
National Osteoporosis Foundation estimates that approximately 200 million people
suffer from the disease worldwide, which affects one out of three post-
menopausal women and one out of seven men over the age of 75. In the United
States, an estimated twenty-five million people suffer from the disease. The
total estimated health care cost of osteoporosis in the United States, including
indirect costs, is approximately $9.8 billion annually.
Until recently, osteoporosis was considered neither treatable nor
preventable. Prior to 1995, only two drugs were marketed as treatments for
osteoporosis in the United States, hormonal replacement therapy and calcitonin,
which was only available in an injectable form. Although these therapies have
been shown to slow the loss of bone mass, they have not been proven effective in
restoring bone mass. In September 1995, the FDA granted Merck clearance to
market the drug Fosamax(Registered) for the treatment of osteoporosis in
post-menopausal women. Clinical studies have shown that, over a three-year
period, Fosamax(Registered) causes an increase in bone mass of 7% - 10% versus
placebo and reduces the number of new fractures by approximately 48%. Additional
osteoporosis drugs are currently in clinical trials being conducted by companies
such as Procter & Gamble, Boehringer-Mannheim, Sanofi, Eli Lilly and Pfizer, and
are expected to receive marketing clearance from the FDA within the next several
years.
Because effective treatments are now available and because osteoporosis may
be preventable if detected in the early stages, the demand for BMD diagnostic
equipment has significantly increased. In the United States, there are
approximately 36 million women who are at high-risk for developing osteoporosis.
Because of the large population segment which could benefit from BMD testing,
the Company believes that there is great demand for a practical, instant, cost
effective, precise, compact and easy-to-use BMD testing device for the primary
care physician. Primary care physicians consist of internal medicine, family,
geriatric and OB/GYN practices. These practices represent approximately 172,000
potential screening sites in the United States alone. Traditional BMD measuring
devices have been large, costly and difficult to operate, and are mainly found
in large hospitals and diagnostic imaging centers. In 1995, there were fewer
than 1,200 such BMD measurement devices in use in the United States.
The most commonly used technique for assessing BMD is dual energy x-ray
absorptiometry ('densitometry' or 'DEXA'). Traditional densitometry machines are
large, table-sized units which measure bone density at a number of axial
skeletal sites, most commonly the hip and spine. The theoretical precision of
DEXA technology is high, allowing it to monitor slight changes in bone density.
Results are available in about one hour. Axial sites, however, require
complicated positioning and scan times of 15 minutes to one hour, resulting in
greater variability of densities and increased radiation. Densitometry machines
that are capable of axial scans cost approximately $50,000 to $150,000 and
require operation by a trained technician. Due to their cost, axial devices are
not practical for use in the primary care market.
Peripheral densitometry devices, which have recently been introduced into
the primary care market, measure BMD of the wrist, forearm, hand and heel, yield
results in four to six minutes and cost between $19,000 and $39,000. These
devices are based on accepted DEXA methodology and may be placed on a
countertop. The Company believes that, since their market introduction in late
1994, over 600 peripheral densitometry devices have been sold worldwide.
However, a number of drawbacks have limited their widespread acceptance. These
include the necessity of specialized training and high cost relative to the
reimbursement rate. In November 1996, the Health Care Finance Administration
('HCFA') changed the reimbursement codes for densitometry, separating them into
two categories: axial densitometry, for which the reimbursement amount is
currently $121.16 per test, and peripheral densitometry, for which the
reimbursement amount is currently $37.57 per test. A number of alternative
techniques have been developed which have attempted to address the needs of the
primary care market, each of which also has significant drawbacks. These include
radiographic absorptiometry
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('RA'), which does not provide instant test results; ultrasound, which has
limited accuracy and has not been approved for use in the United States; and
biochemical markers, which do not reveal absolute bone mass.
Mammography
Breast cancer is the leading cause of cancer death among women in the
United States between the ages of 40 and 55, and the second leading cause of
cancer death among all women in the United States. According to the American
Cancer Society, approximately 184,000 new cases of breast cancer were diagnosed
and approximately 44,000 women died from the disease in 1996. The annual cost of
breast cancer screening and diagnosis in the United States alone is estimated at
$6 billion. Successful treatment of breast cancer depends in large part on the
early detection of malignant lesions in the breast. According to the National
Cancer Institute, the five year survival rate decreases from more than 90% to
72% after the cancer has spread to the lymph nodes, and to 18% after it has
spread to other organs such as the lungs, liver or brain.
Radiographic screening mammography is the standard of care for detecting
breast cancer. The American Cancer Society recently issued a policy statement
recommending that all women over the age of 40 be tested by mammogram yearly. As
a result of increased awareness of the importance of regular screening, the
number of women having regular mammograms is rising. Over the past five years,
the number of mammograms performed in the United States has increased from 15
million to over 25 million annually, according to American Cancer Society
statistics.
Mammography techniques have not changed significantly over the past 20
years, although slight improvements have been made in x-ray film quality. One
major drawback to the use of current mammography systems is their limited
ability to image dense breast tissue, typically found in women under the age of
50, resulting in an unduly high rate of 'false positive' test results and the
concomitant consequences: unwarranted surgical biopsies, significant cost and
great anxiety and concern to the patient. As reported by the American Cancer
Society, women under age 50 experience significant incidence of breast cancer,
with 23% of breast cancer cases detected in women under age 50.
Another limitation of conventional mammography is the time and cost
required to develop the film. Time is particularly problematic in the case of
stereotactic needle biopsies, in which a hollow needle is inserted into the
breast to obtain a tissue sample of a suspected lesion. Multiple mammograms must
be obtained during the procedure in order to properly position the needle. In
1995, approximately 1,000,000 breast biopsies were performed in the United
States, of which approximately 200,000 were stereotactic needle biopsies, up
from fewer than 500 in 1990.
Digital mammography is diagnostically superior to current film-based
systems, yielding higher contrast, improved resolution and lower dosage. Digital
mammography may be especially useful in screening women under the age of 50
because of its enhanced ability to image the denser breast tissue typically
found in younger women. Clinical testing has shown that digital mammography, as
compared with non-digital devices, can increase accurate diagnosis by 20%.
Digital mammography also provides instant images allowing for real time
stereotactic needle biopsies.
The only digital formats for mammography currently on the market are 'spot'
mammography devices, which can depict a 6 x 6 cm region of the breast. These
devices are fabricated with CCDs, are limited in size, and cost in excess of
$90,000. Because of their limited size, these 'spot' mammography devices are
useful for specific operative procedures, such as needle biopsies, but not for
general screening and diagnosis. A number of companies have developed prototypes
of large area digital systems, using either amorphous silicon or tiled CCD
technology. The anticipated price for these units is expected to fall in the
$250,000 to $500,000 range, or approximately four to eight times the current
cost of standard mammography equipment.
According to the American College of Radiology, in 1996 there were
approximately 14,000 screening mammography machines in the United States, and
the Company believes that there were approximately 15,000 additional screening
mammography machines in other major health care markets. The market for
mammography machines is driven by increased awareness of breast cancer risk, the
emphasis on early detection, the growing number of stereotactic needle biopsies
and the advancement of digital technology.
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PRODUCTS
Dental Imaging
The Company's principal revenue-generating product is its CDR(Trademark)
computed dental radiography imaging system. The CDR(Trademark) system produces
full size, high resolution dental x-ray images instantly on a color computer
monitor, without film or the need for chemical development, and with a radiation
dose that is approximately 10% of that required for conventional x-ray film. The
CDR(Trademark) system uses an intra-oral sensor to capture the x-ray image. Once
captured, the x-ray image is transmitted to a computer where it is permanently
stored as part of the patient's x-ray records and can be analyzed using powerful
diagnostic software developed by the Company.
The Company's CDR(Trademark) system is easy to operate and can be used with
any dental x-ray generator. To produce a digital x-ray image using
CDR(Trademark), the dentist selects a sensor of suitable size and places it in
the patient's mouth. The sensor converts the x-rays into a digital image which
is displayed on the computer monitor within five seconds and automatically
stored as part of the patient's clinical records. CDR(Trademark) system software
allows the dentist to perform a variety of advanced diagnostic operations on the
image. The sensor can then be repositioned for the next x-ray. As the x-ray dose
is significantly lower than that required for conventional x-ray film, concern
over the potential health risk posed by multiple x-rays is greatly diminished.
The process is easy and intuitive, enabling nearly any member of the dental
staff to operate the CDR(Trademark) system with minimal training.
The use of the CDR(Trademark) system offers significant benefits to
dentists. The use of digital radiography eliminates delays in, and cost of, film
processing, thus increasing the dentist's potential revenue stream and
efficiency, and reduces overhead expenses. The use of digital radiography also
allows dentists to more effectively communicate diagnosis and treatment plans to
patients, which the Company believes has the potential to increase the rate of
patients' treatment acceptance and resulting revenues. Finally, the dosage
required to produce an intra-oral dental x-ray, which is high when compared with
other medical radiographs, can be reduced by up to 90% through the use of the
Company's product.
The Company manufactures image sensors in three sizes which correspond to
the three standard size conventional x-ray films. Size 0 measures 24 x 17 x 5 mm
and is designed for pediatric use; size 1 measures 38 x 22 x 5 mm for use in
taking anterior dental images; and size 2 measures 40 x 28 x 5 mm and is
designed to take bitewing images. All of the Company's CDR(Trademark) sensors
may easily be sterilized using cold solutions or gas.
In August 1996, the Company received FDA approval to market its innovative
new intra-oral camera, the CDRCam(Trademark), and began shipping the product in
early 1997. Since then, over 300 orders have been received for the Company's
CDRCam(Trademark). CDRCam(Trademark), which the Company believes to be the
smallest and most portable intra-oral camera on the market, features a 1/4-inch
CCD video camera in a miniature handpiece, includes four focal settings,
provides what the Company believes to be the closest macro focus view available
and is the first such camera to offer a detachable handpiece without the need
for a docking station. CDRCam(Trademark) fully integrates with the
CDR(Trademark) system to provide color video images of the structures of the
mouth. Since their introduction in 1991, intra-oral cameras have become widely
accepted as a dental communication and presentation tool.
The typical CDR(Trademark) configuration includes a computer, display
monitor and size 2 digital sensor, and has a list price of $10,995 in the United
States. CDR(Trademark) is also sold in a kit form which includes a digital
sensor and an interface board. The Company sells the CDRCam(Trademark) for
$3,995 when it is purchased together with the CDR(Trademark) system. Optional
accessories, such as a printer and computer network capabilities, increase the
list price of the average CDR(Trademark) system sale to approximately $16,500.
The Company anticipates generating a stream of recurring revenue from its
installed base of CDR(Trademark) systems through its line of disposable
accessories for the CDR(Trademark) system, including sterile barrier covers and
positioning devices.
Osteoporosis Diagnosis
The Company has developed an innovative device to measure BMD to assist
doctors in the diagnosis of osteoporosis. This low-cost and highly precise
diagnostic tool, to be marketed under the trade name accuDEXA(Trademark),
measures BMD more quickly, accurately and easily than any comparable product
currently on the market, while using a minimal radiation dosage. It is a
point-of-treatment tool, designed for use by primary care
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physicians as an integral part of a patient's regular physical examination. In
connection with the development of accuDEXA(Trademark), the Company has entered
into an agreement with Merck pursuant to which Merck agreed to provide the
Company with financing and to develop certain clinical protocols. See '--Merck
Agreement.' The Company has filed a 510(k) application with the FDA in order to
gain approval for the general use and marketing of the device and, pending FDA
marketing clearance, plans to introduce the product in the second half of 1997.
Based on APS technology, accuDEXA(Trademark) is a small self-contained unit
capable of instantly measuring the BMD of a specific portion of the patient's
hand, a site which has a high correlation to fracture risk. This device is the
first BMD measurement instrument which is virtually automatic, requiring no
operator intervention, calibration or interfacing of any kind other than the
entry of relevant patient data into a built-in touch sensitive video screen. The
device requires no external x-ray generator or computer and it exposes the
patient to less than 1% of the radiation of a single conventional dental x-ray
dose. To use accuDEXA(Trademark), the patient places his or her hand into a
positioner and the device automatically produces two low-dosage instant
radiographs. The patient's bone density information is displayed on the screen
in less than 25 seconds. The target price for this device is approximately
$10,000, making it approximately 50% to 60% less expensive than other peripheral
BMD measurement devices on the market. The Company believes that
accuDEXA(Trademark)'s turnkey operation, low-cost, small size and instant
results make it an attractive product for the primary care physician. In
contrast to accuDEXA(Trademark), currently available densitometry machines,
including other peripheral densitometry systems, require that a trained operator
perform the bone scans. This adds additional expense to the cost of the test and
may decrease the test's precision due to possible operator error in positioning
and scanning.
In an independent clinical test conducted at Beth Israel Hospital in
Boston, Massachusetts in conjunction with Harvard Medical School, a prototype of
accuDEXA(Trademark) has been shown to have an accuracy rate of 99.6% and a
precision error rate of only 0.5%. The Company anticipates that
accuDEXA(Trademark) will qualify for the $37.57 per procedure reimbursement
established by HCFA for peripheral measurement devices.
Mammography Device
The Company has developed a method of producing high quality digital
mammography sensors at a cost which, it believes, will be substantially lower
than its competitors' existing and proposed systems. The Company believes that
its digital mammography sensors will yield higher contrast, improved resolution
and lower radiation dosage than current film based systems, will be especially
useful in screening the denser breast tissue typically found in women under the
age of 50 and will allow for real time stereotactic needle biopsies. Clinical
testing has shown that, in comparison with non-digital devices, digital
mammography can increase accurate diagnosis by 20%.
The Company's proprietary APS technology allows the fabrication of high
resolution, large-area devices at low cost. The Company plans to manufacture an
8 x 8 cm sensor by the end of 1997, with a larger full field sensor to follow.
The small 'spot' mammography 6 x 6 cm sensors currently available from other
companies retail for over $90,000. The prototype full sized sensors which are
being developed by these companies are projected to cost $250,000 to $500,000.
The Company believes that its mammography sensors will cost substantially less
than these products and provide superior image quality.
SALES AND MARKETING
Dental Products
Approximately 76% of the Company's sales in fiscal 1997 were made by the
Company's direct sales force to the dental industry in the United States. The
remaining 24% were export sales to foreign independent distributors. In the
United States, the Company utilizes a direct sales system which incorporates
dental trade shows and professional seminars, advertisements in dental
periodicals, journals and other publications, direct mail and product
announcements. The Company employs approximately 40 sales representatives who
are located throughout the United States and are organized into six territories.
A staff of ten marketing specialists based at the Company's offices in New York
supports the direct sales force by planning events and developing promotional
and marketing materials. In addition, the Company has an in-house sales program
which focuses on universities and continuing education programs. As of April 1,
1997, CDR(Trademark) has been sold to more than 30% of
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dental schools in the United States. The Company also employs a government sales
program to sell directly to the Armed Services, Veterans Administration
hospitals, United States Public Health Service and other government-sponsored
health institutions.
In the international market, the Company sells the CDR(Trademark) system
via independent regional distributors. There are currently approximately 30
independent CDR(Trademark) dealers, covering over 50 countries. These dealers
are recruited based upon relevant experience, reputation and resources.
Typically, dealers have contracts of 6 to 12 months, under which they must meet
certain predetermined sales levels. A specialized in-house staff provides the
foreign distributors with materials, technical assistance and training, both in
New York and abroad.
The Company has recently begun to broaden its sales strategy by negotiating
distribution and private-label 'OEM' agreements, both domestically and
internationally. The Company's goal is to utilize its leading position in the
industry to secure as many productive sales channels as possible and to rapidly
penetrate additional segments of the international market. The Company is
currently negotiating agreements with a number of major dental practice
management vendors, dental dealers and dental equipment manufacturers.
Osteoporosis Diagnosis
The Company's strategy is to sell the accuDEXA(Trademark) device pursuant
to an OEM sales agreement with Norland, by which Norland will sell
accuDEXA(Trademark) under its own trade name. The Company also intends to sell
accuDEXA(Trademark) through a direct sales force and other established
independent distributors and manufacturers of medical and radiological
equipment. The primary end-users for accuDEXA(Trademark) are expected to be
primary care physicians, including OB/GYN practices, and osteopathic and
geriatric specialists.
Pharmaceutical companies are currently involved in wide-scale osteoporosis
education and awareness programs targeted at physicians. A number of such
companies currently have FDA-approved therapies for the treatment of
osteoporosis, including Novartis, Wyeth-Ayerst Laboratories and Merck. Several
other companies have additional products which are currently in clinical trials,
including Procter & Gamble, Boehringer-Mannheim, Sanofi, Eli Lilly and Pfizer.
The Company expects that the efforts of pharmaceutical companies to develop
medicines and treatment programs will result in the expansion of doctors'
involvement in initial screening and routine management of osteoporosis, thereby
increasing the market for BMD measurement devices. The Company intends to
capitalize on these efforts both in the United States and abroad. Pharmaceutical
companies already have devoted significant resources to educating doctors about
osteoporosis and BMD measurement devices. The Company intends to pursue
arrangements with these companies in order to generate leads for the Company's
direct sales force, supplementing the Company's various other direct marketing
strategies.
Mammography Devices
The Company's sales strategy will be to sell its mammography devices
through established manufacturers in the mammography market, typically on an
'OEM' basis. The Company plans to develop customized versions of its 'spot' and
'full-field' sensors which OEM buyers can incorporate into a wide variety of
mammography machines. The Company believes that this strategy will allow it to
optimize its penetration of the mammography market through utilization of
existing distribution channels.
MERCK AGREEMENT
On August 7, 1996, the Company entered into a secured term loan agreement
with Merck (the 'Merck Agreement') pursuant to which Merck loaned the Company
approximately $1.5 million to be used for the development, manufacture and
marketing of accuDEXA(Trademark). The loan is secured by all of the Company's
accounts receivable and inventory. Pursuant to the Merck Agreement, Merck has
agreed to provide the Company with an amount equal to 50% of certain clinical
and regulatory fees and expenses incurred by the Company in connection with the
development of accuDEXA(Trademark). The Company anticipates that this will
result in payments by Merck of approximately $175,000 to the Company. Under the
terms of the Merck Agreement, upon the effectiveness of the Registration
Statement, the Company is required to prepay to Merck all amounts due under the
Merck Loan. See '--Use of Proceeds.'
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OVERVIEW OF COMPANY TECHNOLOGY
Digital Radiography Systems
Digital radiography systems are based upon electronic devices which convert
x-ray energy into a machine readable digital format. At the heart of these
systems are semiconductor devices, all of which have a number of common
characteristics: they are made up of a matrix of picture elements, or pixels;
they convert the incident radiation into electrons, which are stored in the
pixels; and they have a mechanism for determining how many electrons are present
within each pixel after the exposure. The number of electrons in each pixel
corresponds to the amount of radiation which entered that pixel. By assigning an
intensity value to each pixel based upon the number of electrons collected, an
image can be reconstructed for display and storage.
Because semiconductors are more sensitive to visible light than to x-rays,
a 'conversion layer' is typically placed in front of the semiconductor to
convert the x-rays into visible light so that they can be more efficiently
imaged. This conversion layer is called a scintillator, and is typically a thin
coating which is optically coupled to the semiconductor. The resolution of a
digital radiography system is determined by a combination of the size of the
pixels (the smaller the pixel, the better the resolution), and the quality of
the scintillator and its optical coupling to the semiconductor.
CCDs
A number of different types of semiconductor sensors exist, the most common
of which is the CCD. CCDs have been available since the early 1970s, and are
used in a wide range of imaging applications, from low cost consumer products
such as camcorders, to sophisticated space based surveillance systems. CCDs are
made using microlithographic techniques to create circuit patterns in silicon
wafers, and can therefore be designed with very small pixels, resulting in high
resolution sensors. However, CCDs require very exacting custom manufacturing
standards, and are very sensitive to minute processing fluctuations. As CCDs are
made larger, the manufacturing yield typically drops dramatically, due to the
sensitive nature of the devices and the presence of random defects in the
silicon material. As a result, the price of CCDs is exponentially related to
their size, with a doubling of image area resulting in a quadrupling of cost.
The Company's CDR(Trademark) system is made using an enhanced, low-cost,
large-area, high resolution CCD device. This is achieved by combining a
simplified manufacturing process with a novel yield-enhancement technique. Using
these techniques, the Company has made the only dental sensor large enough to
replace conventional intra-oral dental film.
APS Technology
In 1992, Cal Tech developed an experimental method of producing high
resolution electronic APS using much less expensive CMOS manufacturing
techniques. CMOS, which stands for 'complementary metal-oxide-semiconductor,' is
an inexpensive and highly refined semiconductor process which is used to make
almost all of the world's integrated circuits, such as microprocessors, memories
and graphics chips. Unlike CCD processes, which are unique to each manufacturer,
CMOS technology is uniform throughout the semiconductor industry. Typical CMOS
wafer processing is a fraction of the cost of CCD processing, and CMOS
manufacturing yield is much higher.
In 1994, the Company became involved in a cooperative development program
with Cal Tech to adapt APS devices for radiographic use. Over a three year
period, a method was developed to utilize APS technology to produce a CMOS x-ray
sensor with image quality equal to that of CCDs. In June 1996, the Company
obtained a license to use APS devices for a broad range of health care
applications. See '--License Agreements'. APS technology is currently used in
the Company's BMD measurement device.
Large Area Sensors
Because CCDs are made from silicon wafers, the maximum size of CCDs is
limited by available wafer sizes, typically to about six centimeters square. A
number of methods have been developed to overcome this problem and create large
area x-ray sensors. One such technique 'tiles' a number of CCD devices together
to
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form a large sensor. However, since CCDs must have an inactive border around the
pixels, the resulting sensor has large inactive 'seams' around each CCD. To
minimize the border size, the CCDs can be attached to a special optical
component, called a reducing fiber optic plate, which expands the active region
to beyond the inactive border. While this technique greatly reduces the size of
the inactive border, it adds significantly to the cost of the already expensive
CCD elements. In addition, the reducing fiber optic plates introduce undesirable
image distortion and limit the sensitivity of the device.
Amorphous silicon detectors provide one alternative to these tiled CCD
arrays. These semiconductor devices are made on glass plates rather than on
silicon wafers. Detector sizes of up to 20 inches have been achieved using
amorphous silicon. However, amorphous silicon cannot utilize the advanced
microlithography methods used to produce high resolution CCD devices, and so the
pixel sizes are undesirably large and resolution is limited. Also, amorphous
silicon sensors are susceptible to readout noise which further reduces image
quality.
In March 1997, the PTO allowed the Company's patent application for a
'Large Area Image Array'. This patent describes a novel method of producing
large-area APS devices without the need for reducing fiber optic plates. APS
devices cost a fraction of the cost of CCD devices. The Company is currently
developing a number of products based on this patent, including 'spot' and 'full
field' mammography sensors.
MANUFACTURING
The Company's products are manufactured at its facility in Long Island
City, New York, which includes a 4,000 square foot clean room facility. This
facility is subject to periodic inspection by the FDA. The Company has invested
in automated and semi-automated equipment for the fabrication and machining of
parts and assemblies incorporated in its products. The Company's quality
assurance program includes various quality control measures from inspection of
raw materials, purchased parts and assemblies through online inspection. See
'Risk Factors--Potential for Product Recall and Product Liability Claims.'
The Company manufactures most of its custom components itself in order to
minimize dependence on suppliers and for quality control purposes. While the
Company does procure certain components from outside sources which, because of
the quality of their products, are sole suppliers, it believes that those
components could be obtained from additional sources without substantial
difficulty, although the need to change suppliers or to alternate between
suppliers might cause material delays in delivery or significantly increase the
Company's costs. The Company's manufacturing processes are, for the most part,
vertically integrated, although selective outsourcing is employed to take
advantage of economies of scale at outside manufacturing facilities and to
alleviate manufacturing bottlenecks. See 'Risk Factors--Potential for Product
Recall and Product Liability Claims.' Certain components used in existing
products of the Company, as well as products under development, may be purchased
from single sources. See 'Risk Factors--Dependence on Key Suppliers.'
COMPETITION
The health care industry in general, and the market for imaging products in
particular, is highly competitive. The Company faces competition and potential
competition from a number of companies, many of which have substantially greater
financial, marketing and other resources than the Company. The specific
competitors are distinct within each of the Company's markets, as described
below. The Company competes primarily on the basis of technology, pricing,
product features and performance, and believes that its products compete
favorably in all such areas. There can be no assurance that the Company will
maintain its competitive position against current and potential competitors,
especially those with greater resources than the Company.
Dental Products
A number of companies currently sell intra-oral digital dental sensors.
These include Trophy S.A., Siemens Dental Systems, Regam Medical Systems and
Dentsply. None of the competing devices currently on the market is able to
produce full size dental images. In addition, Sorodex Corporation sells a
storage-phosphor based intra-oral dental system. The CDR(Trademark) system has
thus far competed successfully against other products. If other companies enter
the digital radiography field, it may result in a significantly more competitive
market in the future. Several companies are involved in the manufacture and sale
of intra-oral cameras, including Dentsply, Welch-Allyn Co., Henry Schein Co.,
Ultra-Cam, Air Technics and DMD.
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Osteoporosis Diagnosis
Norland is currently marketing two peripheral BMD devices which scan the
patient's distal forearm and calcaneus (heel), respectively, and Lunar recently
announced the introduction of a peripheral densitometry device which scans the
heel. A number of companies, including Hologic and Metra Biosystems, are
developing ultrasound machines for BMD monitoring. Two companies, Ostex and
Metra Biosystems, are developing biochemical markers which indicate the rate at
which the body is resorbing (i.e., breaking down) bone. One other potential
competitor of the Company's accuDEXA(Trademark) is the Osteogram test,
manufactured by CompuMed Inc., a peripheral screening test employing RA
technology, conventional hand x-rays and computer analysis.
Mammography Devices
The companies in the digital mammography market include the following
manufacturers of traditional mammography devices: GE Medical Systems, Fischer
Imaging, Trex Medical, Instrumentarium Imaging, Philips and Siemens.
DEPENDENCE ON CUSTOMERS
The Company's business is not dependent on any single customer, and the
Company does not believe that the loss of any single customer would have a
material adverse impact on the Company. Except for Dental Computer/Dental
Technologies, which accounted for 18.0% and 8.3% of the Company's sales,
respectively, in 1996 and 1997, and Oral Vision, Inc., which accounted for 21.3%
of the Company's sales in 1995, no single customer has accounted for more than
five percent of the Company's annual sales in either of the Company's two most
recent fiscal years.
PATENTS, TRADE SECRETS AND PROPRIETARY RIGHTS
The Company seeks to protect its intellectual property through a
combination of patent, trademark and trade secret protection. The Company's
future success will depend in part on its ability to obtain and enforce patents
for its products and processes, preserve its trade secrets and operate without
infringing the proprietary rights of others.
Patents
The Company has an active corporate patent program, the goal of which is to
secure patent protection for its technology. The Company currently has an issued
United States patent for an 'Intra-Oral Sensor for Computer Aided Radiography,'
and an allowed United States patent application for a 'Large Area Image
Detector.' The Company also has an additional patent application currently
pending before the PTO. In addition, the Company is the exclusive licensee of a
United States patent for an 'Intraoral Fluoroscope,' which patent expired on
July 10, 1996, and is the licensee in certain fields of biomedical radiology of
certain patents, patent applications and other know-how related to CMOS active
pixel sensors, the technology for which was developed by Cal Tech.
Trademarks
The Company currently has pending in the PTO trademark applications on the
mark 'CDR' for its digital dental radiography product, 'CDRCam' (both textual
and stylized) for its intra-oral camera, 'QUICKZOOM' (both textual and stylized)
for a viewing feature in its digital dental radiography product and 'accuDEXA'
for its BMD measurement product. In connection with the CDR application, the
mark was published for opposition in the January 28, 1997 edition of the
Official Gazette of the PTO. No opposition proceeding was filed and a notice of
allowance is expected shortly.
Trade Secrets
In addition to patent protection, the Company owns trade secrets and
proprietary know-how which it seeks to protect, in part, through appropriate
non-disclosure, confidentiality, non-solicitation, non-competition and employee
agreements with appropriate individuals, including employees, consultants,
vendors and independent contractors. These agreements generally provide that all
confidential information developed by or made known to
33
<PAGE>
the individual by the Company during the course of the individual's relationship
with the Company is the property of the Company, and is to be kept confidential
and not disclosed to third parties, except in specific limited circumstances.
The agreements also generally provide that all inventions conceived by the
individual in the course of rendering services to the Company shall be the
exclusive property of the Company. However, there can be no assurances that
these agreements will not be breached, that the Company would have adequate
remedies available to it for any breach or that the Company's trade secrets will
not otherwise become known to, or independently developed by, its competitors.
GOVERNMENT REGULATION
Products that the Company is currently developing or may develop in the
future are likely to require certain forms of governmental clearance, including
FDA marketing clearance. The FDA review process typically requires extended
proceedings pertaining to product safety and efficacy. The Company believes that
its future success will depend to a large degree upon commercial sales of
improved versions of its current products and sales of new products; the Company
will not be able to market such products in the United States without FDA market
clearance. There can be no assurance that accuDEXA(Trademark), or any other
products to be developed by the Company, will be given clearance by applicable
governmental authorities or that additional regulations will not be adopted or
current regulations amended in such a manner as to adversely affect the Company.
See 'Risk Factors--Regulatory and Legislative Risks.'
Pursuant to the Federal Food, Drug and Cosmetic Act, as amended (the 'FD&C
Act'), the FDA classifies medical devices intended for human use into three
classes: Class I, Class II, and Class III. In general, Class I devices are
products for which the FDA determines that safety and effectiveness can be
reasonably assured by general controls under the FD&C Act relating to such
matters as adulteration, misbranding, registration, notification, records and
reports. The CDRCam(Trademark) is a Class I device.
Class II devices are products for which the FDA determines that general
controls are insufficient to provide a reasonable assurance of safety and
effectiveness, and that require special controls such as promulgation of
performance standards, post-market surveillance, patient registries or such
other actions as the FDA deems necessary. The CDR(Trademark) system has been
classified as a Class II device.
Class III devices are devices for which the FDA has insufficient
information to conclude that either general controls or special controls would
be sufficient to assure safety and effectiveness, and which are life-supporting,
life-sustaining, of substantial importance in preventing impairment of human
health, or present a potential unreasonable risk of illness or injury. Devices
in this case require pre-marketing approval, as described below. None of the
Company's existing products are in the Class III category.
The FD&C Act further provides that, unless exempted by regulation, medical
devices may not be commercially distributed in the United States unless they
have been cleared by the FDA. There are two review procedures by which medical
devices can receive such clearance. Some products may qualify for clearance
under a Section 510(k) procedure, in which the manufacturer submits to the FDA a
pre-market notification that it intends to begin marketing the product, and
shows that the product is substantially equivalent to another legally marketed
product (i.e., that it has the same intended use and that it is as safe and
effective as a legally marketed device, and does not raise different questions
of safety and effectiveness than does a legally marketed device). In some cases,
the 510(k) notification must include data from human clinical studies.
Marketing may commence once the FDA issues a clearance letter finding such
substantial equivalence. According to FDA regulations, the agency has 90 days in
which to respond to a 510(k) notification. There can be no assurance, however,
that the FDA will provide a response within that time, or reach a finding of
substantial equivalence.
If a product does not qualify for the 510(k) procedure (either because it
is not substantially equivalent to a legally marketed device or because it is a
Class III device), the FDA must approve a PMA application before marketing can
begin. PMA applications must demonstrate, among other things, that the medical
device is safe and effective. A PMA application is typically a complex
submission that includes the results of clinical studies. Preparation of such an
application is a detailed and time-consuming process. Once a PMA application has
been submitted, the FDA's review process may be lengthy and include requests for
additional data. By statute and
34
<PAGE>
regulation, the FDA may take 180 days to review a PMA application, although such
time may be extended. Furthermore, there can be no assurance that a PMA
application will be approved by the FDA.
In February 1994, the FDA approved the Company's 510(k) application for
general use and marketing of the CDR(Trademark) system. In August 1996, the FDA
approved the Company's 510(k) application for general use and marketing of the
CDRCam(Trademark).
In May 1997, following the completion of a study performed at Beth Israel
Hospital in Boston, Massachusetts in conjunction with Harvard Medical School,
the Company filed a 510(k) application with the FDA, seeking marketing clearance
for accuDEXA(Trademark). The Company believes that accuDEXA(Trademark) will be
classified as a Class II device, and that this product will not require a PMA
application but will be eligible for marketing clearance through the 510(k)
notification procedure based upon its substantial equivalence to a previously
marketed device or devices. Although the 510(k) pre-market clearance process is
ordinarily simpler and faster than the PMA application process, there can be no
assurance that the Company will obtain 510(k) pre-market clearance for
accuDEXA(Trademark) or that it will be classified as a Class II device or that,
in order to obtain 510(k) clearance, the Company will not be required to submit
additional data or meet additional FDA requirements that may substantially delay
the 510(k) process and add expense to the process. Moreover, such 510(k)
pre-market clearance, if obtained, may be subject to conditions on the marketing
or manufacturing of accuDEXA(Trademark) which may impede the Company's ability
to market and/or manufacture the product.
In addition to the requirements described above, the FD&C Act requires that
all medical device manufacturers and distributors register with the FDA annually
and provide the FDA with a list of those medical devices which they distribute
commercially. The FD&C Act also requires that all manufacturers of medical
devices comply with labeling requirements and manufacture their products and
maintain their documents in a prescribed manner with respect to manufacturing,
testing, and quality control activities. The FDA's Medical Device Reporting
regulation subjects medical devices to postmarket reporting requirements for
death or serious injury, and for certain malfunctions that would be likely to
cause or contribute to a death or serious injury if malfunction were to recur.
In addition, the FDA prohibits a device which has received marketing clearance
from being marketed for applications for which marketing clearance has not been
obtained. The FDA further requires that certain medical devices not cleared for
marketing in the United States receive FDA marketing clearance before they are
exported.
FDA guidelines entitled 'Good Manufacturing Practices of Medical Devices'
set forth standards for the Company's manufacturing process, requires the
maintenance of certain records and provide for unscheduled inspections of the
Company's facilities. Certain requirements of state, local and foreign
governments must also be complied with in the manufacture and marketing of the
Company's products. The Company believes that its manufacturing and quality
control procedures meet the requirements of these regulations.
Failure to comply with applicable regulatory requirements can, among other
consequences, result in fines, injunctions, civil penalties, suspensions or loss
of regulatory approvals, product recalls, seizure of products, operating
restrictions and criminal prosecution. In addition, governmental regulations may
be established that could prevent or delay regulatory clearance of the Company's
products. Delays in receipt of clearance, failure to receive clearance or the
loss of previously received clearance would have a material adverse effect on
the Company's business, financial condition and results of operations.
In addition to laws and regulations enforced by the FDA, the Company is
subject to government regulations applicable to all businesses, including, among
others, regulations related to occupational health and safety, workers' benefits
and environmental protection. The extent of government regulation that might
result from any future legislation or administrative action cannot be accurately
predicted. Failure to comply with regulatory requirements could have a material
adverse effect on the Company's business, financial condition and results of
operations.
Distribution of the Company's products in countries other than the United
States may be subject to regulations in those countries. The Company typically
relies on its independent distributors in such foreign countries to obtain the
requisite regulatory approvals. There can be no assurance that the Company will
be able to obtain the approvals or clearances necessary to market its
accuDEXA(Trademark) or any other product outside of the United States.
35
<PAGE>
LITIGATION
The Company is a named defendant in two lawsuits instituted by Trophy S.A.
One lawsuit was instituted in France and the other in the United States.
The French lawsuit was filed in November 1995, in the tribunal de Grande
Instance de Bobigny, the French patent court, and originally alleged that the
Company's CDR(Trademark) system infringes French Patent No. 2,547,495, European
Patent No. 129,451 and French Certificate of Addition No. 2,578,737. These
patents, all of which are related, are directed to a CCD based intra-oral
sensor. Since filing its lawsuit, the allegation of infringement with respect to
the Certificate of Addition has been withdrawn. Trophy S.A. is seeking a
permanent injunction and damages, including damages for its purported lost
profits. The Company believes that the lawsuit is without merit, and is
vigorously defending it. The Company is represented by a French barrister and
French patent counsel.
The lawsuit in the United States was filed in March 1996 by Trophy S.A.,
Trophy Inc. and the named inventor on the patent in suit, Francis Mouyen, a
French citizen. The suit was brought in the United States District Court for the
Eastern District of New York, and alleges that the Company's CDR(Trademark)
system infringes the '400 patent, which is related to the patents in the French
lawsuit. Trophy S.A., Trophy Inc. and Mouyen are seeking a permanent injunction
and unspecified damages, including damages for purported lost profits, enhanced
damages for the Company's purported willful infringement and an award of
attorney fees. The Company believes that the lawsuit is without merit, and is
vigorously defending it. The Company is represented by United States
intellectual property counsel, and has also obtained a formal opinion of
intellectual property counsel that the CDR(Trademark) system does not infringe
the '400 patent.
In addition, the Company has counter-sued Trophy S.A. and Trophy Inc. for
infringement of United States Patent No. 4,160,997, a recently expired patent
which was exclusively licensed to the Company by its inventor, Dr. Robert
Schwartz, and for false advertising and unfair competition. The Company believes
that its counter-suits are meritorious, and is vigorously pursuing them.
The Company has also been sued by Radworks and the University of Texas.
That suit, filed in December 1996 in the United States District Court for the
Western District of Texas, alleges that the Company's CDR(Trademark) system
infringes the '579 patent. The '579 patent is directed to a display system for
digital dental radiographs. Radworks and the University of Texas are seeking a
permanent injunction and unspecified damages, including enhanced damages for the
Company's purported willful infringement and an award of attorney fees. The
Company believes that the lawsuit is without merit, and is vigorously defending
it. The Company is represented by intellectual property counsel and Texas local
counsel, and has also obtained a formal opinion of intellectual property counsel
that the CDR(Trademark) system does not infringe the '579 patent.
There can be no assurance that the Company will be successful in its
defense of any of these actions, or in its counter-suits. If the Company is
unsuccessful in its defense of any of these actions, it could have a material
adverse effect upon the Company. Moreover, regardless of their outcome, the
Company may be forced to expend significant amounts of money in legal fees in
connection with these lawsuits.
INSURANCE
The Company is subject to the risk of product liability and other liability
claims in the event that the use of its products results in personal injury or
other claims. Although the Company has not experienced any product liability
claims to date, any such claims could have an adverse impact on the Company. The
Company maintains insurance coverage related to product liability claims in the
amount of $1 million per occurrence, annual aggregate maximum coverage in the
amount of $2 million, and umbrella coverage in the amount of $10 million. There
can be no assurance that product liability or other claims will not exceed such
insurance coverage limits, or that such insurance will continue to be available
on commercially acceptable terms, or at all. See 'Risk Factors--Potential for
Product Recall and Product Liability Claims.'
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<PAGE>
EMPLOYEES
At April 1, 1997, the Company had 173 full-time employees, engaged in the
following capacities: production (47); direct sales (40); management,
accounting, legal and administrative (35); research and development and quality
control engineers (26); product support engineers (15); and marketing (10). The
Company believes that its relations with its employees are good. No Company
employees are represented by a labor union or are subject to a collective
bargaining agreement, nor has the Company experienced any work stoppages due to
labor disputes.
FACILITIES
The Company presently occupies 30,800 square feet of space in Long Island
City, New York pursuant to a lease with Falchi Building Co., LP, which expires
in February 2001. This space houses the Company's executive offices, sales and
marketing headquarters, research and development laboratories and production and
shipping facilities. The Company anticipates expanding its facilities over the
next 12 months to meet increased staffing and manufacturing needs. The Company
expects that adequate space will be available at a reasonable cost.
37
<PAGE>
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth certain information with respect to the
directors and executive officers of the Company.
NAME AGE* POSITION
- ---------------------------- ---- ----------------------------------------------
David B. Schick............. 36 Chairman of the Board, Chief Executive Officer
and President
Jonathan Singer............. 32 Vice President--Engineering and Director
David B. Spector, C.P.A. ... 37 Chief Financial Officer
Zvi N. Raskin, Esq. ........ 34 Secretary and General Counsel
Daniel Neugroschl........... 30 Vice President--Operations and Advanced
Development
Fred Levine................. 34 Director of Sales and Marketing
Mark I. Bane, Esq. ......... 36 Director
Euval S. Barrekette, Ph.D. . 66 Director
Allen Schick, Ph.D. ........ 63 Director
Howard Wasserman, D.D.S. ... 40 Director
- ------------------
* At April 1, 1997
The business experience of each of the directors and executive officers is
set forth below.
DAVID B. SCHICK is a founder of the Company and, since its inception in
April 1992, has served as the Company's President, Chief Executive Officer and
Chairman of the Board of Directors. From September 1991 to April 1992 Mr. Schick
was employed by Philips N.V. Laboratories, where he served as a consulting
engineer designing high-definition television equipment. From February 1987 to
August 1991, Mr. Schick was employed as a senior engineer at Cox and Company, an
engineering firm in New York City ('Cox and Company'). From January 1985 to
January 1987, Mr. Schick was employed as an electrical engineer at Grumman
Aerospace Co. Mr. Schick holds a B.S. degree in electrical engineering from the
University of Pennsylvania's Moore School of Engineering. Mr. Schick is the son
of Dr. Allen Schick and the nephew of Dr. Euval S. Barrekette. In 1996, Mr.
Schick was awarded the New York City Region Entrepreneur of the Year Award.
JONATHAN SINGER is a founder of the Company and, since July 1992, has
served as the Company's Vice President of Engineering. Since January 1995, Mr.
Singer has also served as a Director of the Company. From February 1991 to July
1992, Mr. Singer was employed as a mechanical engineer by Cox and Company. He
holds a B.S. degree in Mechanical Engineering from the Massachusetts Institute
of Technology and an M.S. degree from the University of Pennsylvania.
DAVID B. SPECTOR has been the Company's Chief Financial Officer since
January 1996. Mr. Spector joined the Company in 1992 as its part-time
controller. From September 1992 to December 1995, Mr. Spector was a
self-employed certified public accountant. From January 1988 to September 1992,
Mr. Spector was an accountant with Kranz & Co., a certified public accounting
firm. Mr. Spector holds a B.S. degree in business from Adelphi University.
ZVI N. RASKIN, Esq., has served as Secretary of the Company since April
1992 and as General Counsel of the Company since September 1995. From April 1992
to May 1996, Mr. Raskin was a Director of the Company. Mr. Raskin is admitted to
practice law before the Bars of the State of New York, the United States
District Courts for the Southern and Eastern Districts of New York and the
United States Court of Appeals for the Second Circuit. From 1992 to 1995, Mr.
Raskin was a senior associate at the New York law firm of Townley & Updike. From
1990 to 1992, Mr. Raskin was an associate at the New York law firm of Dornbush
Mandelstam & Silverman. Mr. Raskin holds a J.D. degree from Yale Law School.
DANIEL NEUGROSCHL is a founder of the Company and since September 1992 has
served as the Company's Vice President of Operations and Advanced Development.
From January 1995 to May 1996, Mr. Neugroschl was a Director of the Company.
From November 1990 to September 1992, Mr. Neugroschl was a researcher at IBM's
T.J. Watson Research Center. Mr. Neugroschl holds an M.S. degree in Materials
Science from Columbia University.
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<PAGE>
FRED LEVINE has served as the Company's Director of Sales and Marketing
since August 1995. From May 1987 to August 1995, Mr. Levine was employed at
American Express Travel Services, where he served in various positions,
including Director of Product Development and Sales from September 1993 to
August 1995. Mr. Levine holds a B.S. degree in Computer Science from Brooklyn
College.
MARK I. BANE, Esq., has served as a Director of the Company since January
1995. From July 1993 to the present, Mr. Bane has been a partner at the New York
City law firm of Kelley Drye & Warren LLP. From April 1989 to July 1993, Mr.
Bane was an associate at Kelley Drye & Warren LLP. Mr. Bane is admitted to
practice law before the Bars of the State of New York, the United States
District Courts for the Southern and Eastern Districts of New York and the
District of Connecticut. Mr. Bane holds a J.D. degree from New York University
School of Law.
EUVAL S. BARREKETTE, Ph.D., has served as a Director of the Company since
April 1992. Dr. Barrekette is a licensed Professional Engineer in New York
State. Since 1986 Dr. Barrekette has been a consulting engineer and physicist.
From 1984 to 1986 Dr. Barrekette was Group Director of Optical Technologies of
the IBM Large Systems Group. From 1960 to 1984 Dr. Barrekette was employed at
IBM's T.J. Watson Research Center in various capacities, including Assistant
Director of Applied Research, Assistant Director of Computer Science, Manager of
Input/ Output Technologies and Manager of Optics and Electrooptics. Dr.
Barrekette holds an A.B. degree from Columbia College, a B.S. degree from the
Columbia University School of Engineering, an M.S. degree from its Institute of
Flight Structures and a Ph.D. from the Columbia University Graduate Faculties.
Dr. Barrekette is a fellow of the American Society of Civil Engineers and a
Senior Member of the Institute of Electronic & Electrical Engineers. Dr.
Barrekette is a member of The National Society of Professional Engineers, The
New York State Society of Professional Engineers, The Optical Society of America
and The New York Academy of Science. Dr. Barrekette is the uncle of Mr. David
Schick and the brother-in-law of Dr. Allen Schick.
ALLEN SCHICK, Ph.D., has served as a Director of the Company since April
1992. Since 1981, Dr. Schick has been a professor at the University of Maryland
and since 1988 has been a Visiting Fellow at the Brookings Institution. Dr.
Schick holds a Ph.D. degree from Yale University. Dr. Schick is Mr. David
Schick's father and the brother-in-law of Dr. Barrekette.
HOWARD WASSERMAN, D.D.S., has served as a Director of the Company since May
1996 and has been a medical advisor to the Company since 1992. Since 1983, Dr.
Wasserman has been a practicing dentist in New York City. Dr. Wasserman has been
a member of the American Academy of Periodontology since 1981, and a member of
the American Dental Association since 1977. Dr. Wasserman has served as a
Director of Live Wire Enterprises, a manufacturer of electroluminescent wire
systems, since 1996. Dr. Wasserman holds a D.D.S. degree from Columbia
University School of Dentistry.
Pursuant to the Certificate of Incorporation and By-Laws, the Board of
Directors consists of seven directors or such greater or lesser number (not less
than five or greater than twelve) as may be fixed from time to time by a
majority of the total number of directors which the Company would have if there
were no vacancies on the Board of Directors (the 'Whole Board').
The directors are divided into three classes, each class consisting of as
nearly equal a number of Directors as possible, having terms expiring at the
respective annual meetings of stockholders in 1998 (comprised of Messrs. Singer
and Wasserman), 1999 (comprised of Messrs. Bane and Barrekette) and 2000
(comprised of Messrs. David Schick and Allen Schick). At each annual meeting of
stockholders, successors to directors of the class whose term expires at such
meeting will be elected to serve for three-year terms and until their successors
are elected and qualified.
The term in office of each executive officer ends when his successor has
been elected and qualified or upon his removal or resignation. The By-Laws
provide that officers of the Company can be removed or replaced only by the
affirmative vote of a majority of the Whole Board (excluding, if such officer is
also a director, such director).
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<PAGE>
The Board of Directors has established an Executive Compensation Committee
and an Audit Committee. The responsibilities and membership requirements of each
of these Committees are described below.
The Audit Committee consists of at least two directors, none of whom may be
an employee of the Company. The Audit Committee has oversight responsibility
relating to the Company's accounting practices, internal financial controls and
financial reporting, including the engagement of independent auditors and the
planning, scope, timing and cost of any audit as well as review of the
independent accountant's report on the financial statements following completion
of each such audit. In addition, the Audit Committee is responsible for the
development and implementation of policies, procedures and other matters
relating to business integrity, ethics and conflicts of interest. The members of
the Audit Committee are Messrs. Bane and Barrekette.
The Executive Compensation Committee consists of at least two directors, a
majority of whom may not be employees of the Company. The Executive Compensation
Committee has oversight responsibility relating to the Company's employee
benefit and compensation plans, including compensation of the executive officers
and administering and making awards under the 1996 Employee Stock Option Plan.
The Executive Compensation Committee is also responsible for the development and
implementation of policies, procedures and other matters relating to the hiring
and retention of management and for reviewing, monitoring and recommending (for
approval by the Board of Directors) plans with respect to succession of the
chief executive officer. The members of the Executive Compensation Committee are
Messrs. Bane and Wasserman.
Prior to the Offering, directors served without compensation. Following the
Offering, directors who are not employees of the Company will be entitled to an
annual retainer of $2,000, a fee of $500 for each meeting of the Board of
Directors attended in person and a fee of $300 for each committee meeting
attended. At the option of the Board of Directors, such retainers and fees may
be paid in shares of Common Stock. In addition, non-employee directors are
entitled to receive annual grants of stock options as described under
'--Directors Stock Option Plan.' Since January 1, 1997, all directors have been
entitled to reimbursement of reasonable travel expenses incurred in connection
with the Company's business.
Certain provisions of the Certificate of Incorporation and By-Laws and the
DGCL may limit the ultimate liability of directors and executive officers of the
Company for breaches of certain of their duties to the Company and its
stockholders. See 'Description of Capital Stock--Certain Charter and Statutory
Provisions.'
EXECUTIVE COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Mark I. Bane, Esq., a partner of Kelley Drye & Warren LLP, outside counsel
to the Company, has been a member of the Executive Compensation Committee since
January 1996.
EXECUTIVE COMPENSATION
The following table sets forth certain information concerning compensation
received by the Company's chief executive officer and each of the executive
officers of the Company whose total salary and bonus compensation exceeded
$100,000 (the 'Named Executives') for services rendered in all capacities
(including service as a director of the Company) during the year ended March 31,
1997.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM
COMPENSATION/AWARDS
ANNUAL COMPENSATION -------------------
-------------------------------------- SECURITIES
FISCAL OTHER ANNUAL UNDERLYING ALL OTHER
NAME AND PRINCIPAL POSITION YEAR SALARY($) BONUS($) COMPENSATION($) OPTIONS(#) COMPENSATION($)
- --------------------------- ------ --------- -------- --------------- ------------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
David B. Schick
Chairman of the Board,
Chief Executive Officer
and President............ 1997 $ 140,308 $ 5,890 -- 5,715(1) $ 2,000(2)
Fred Levine
Director of Sales and
Marketing................ 1997 $ 105,846 $ 42,353(3) -- -- $ 1,500(2)
David B. Spector
Chief Financial Officer.. 1997 $ 102,769 $ 6,386 -- -- $ 1,331(2)
</TABLE>
(Footnotes on next page)
40
<PAGE>
- ------------------
(1) Represents options to purchase shares of Common Stock granted in fiscal 1997
pursuant to the Company's 1996 Employee Stock Option Plan. See '--1996
Employee Stock Option Plan.'
(2) Reflects amounts contributed by the Company in the form of matching
contributions to the Named Executive's Savings Plan account in fiscal 1997.
See '--Savings Plan.'
(3) Includes a commission of $36,579 received by Mr. Levine in fiscal 1997 in
connection with certain sales targets that were met or exceeded.
STOCK OPTION GRANTS
The following table sets forth information regarding grants of options to
purchase Common Stock made by the Company during the year ended March 31, 1997
to each of the Named Executives.
OPTION GRANTS IN FISCAL 1997
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS POTENTIAL REALIZABLE
--------------------------------------------------------- VALUE AT ASSUMED
PERCENT OF ANNUAL RATES OF
NUMBER OF TOTAL OPTIONS STOCK PRICE
SECURITIES GRANTED TO APPRECIATION FOR
UNDERLYING EMPLOYEES IN EXERCISE OR OPTION TERM(2)
OPTIONS FISCAL BASE PRICE EXPIRATION -------------------------------
NAME GRANTED(#) 1997(1) ($/SHARE) DATE (0%) (5%) (10%)
- --------------------- ---------- ------------- ------------ ---------- ------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
David B. Schick(3)... 5,715 7.20% $ 7.14 7/22/06 $50,635 $108,128 $196,367
</TABLE>
- ------------------
(1) The Company granted options to purchase a total of 79,338 shares of Common
Stock in fiscal 1997.
(2) Amounts reported in these columns represent amounts that may be realized
upon exercise of options immediately prior to the expiration of their term
assuming the specified compounded rates of appreciation (0%, 5% and 10%) on
the Common Stock over the term of the options. These assumptions are based
on rules promulgated by the Commission and do not reflect the Company's
estimate of future stock price appreciation. Actual gains, if any, on the
stock option exercises and Common Stock holdings are dependent on the timing
of such exercises and the future performance of the Common Stock. There can
be no assurance that the rates of appreciation assumed in this table can be
achieved or that the amounts reflected will be received by the option
holder.
(3) The fiscal 1997 stock option grant to Mr. Schick is a time-vesting option.
25% of such option vests on July 22, 1997 and an additional 25% vests on
July 22 of each of 1998, 1999 and 2000. The stock option was exercisable
upon grant.
OPTION EXERCISES AND YEAR-END VALUE TABLE
The following table sets forth information regarding the exercise of stock
options during fiscal 1997 and the number and value of unexercised options held
at March 31, 1997 by each Named Executive.
AGGREGATED OPTION EXERCISES IN FISCAL 1997
AND FISCAL 1997 YEAR-END OPTION VALUES
<TABLE>
<CAPTION>
NUMBER OF SECURITIES VALUE OF UNEXERCISED
UNDERLYING UNEXERCISED 'IN-THE-MONEY'
SHARES VALUE OPTIONS AT OPTIONS AT
ACQUIRED ON REALIZED MARCH 31, 1997 MARCH 31, 1997
NAME EXERCISE(#) ($) EXERCISABLE/UNEXERCISABLE EXERCISABLE/UNEXERCISABLE(1)
- ------------------ ----------- -------- ------------------------- ----------------------------
<S> <C> <C> <C> <C>
David B. Schick... -- -- 5,715/0 50,635/0
Fred Levine....... -- -- 28,000/28,000(2) 397,880/397,880
</TABLE>
- ------------------
(1) Options are 'in-the-money' if the fair market value of the underlying
securities exceeds the exercise price of the options. The amounts set forth
represent the difference between $16.00 per share, the assumed initial
public offering price per share (the mid point of the range set forth on the
cover page) and the exercise price of the option, multiplied by the
applicable number of options.
(2) Reflects options to purchase shares of Common Stock at an exercise price of
$1.79 a share granted to Mr. Levine in fiscal 1996 in connection with Mr.
Levine's commencement of employment with the Company. Currently unvested
options to purchase an additional 14,000 shares will vest and become
exercisable on December 31 of each of 1997 and 1998. All of the options
expire on December 31, 2000.
1996 EMPLOYEE STOCK OPTION PLAN
In April 1996, the Board of Directors adopted and the shareholders of the
Company approved the 1996 Employee Stock Option Plan, which provides for the
grant to officers, directors and employees of the Company and consultants,
advisors and independent contractors of the Company of both 'incentive stock
options' within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended (the 'Code'), and stock options that are non-qualified for federal
income tax purposes. The total number of shares of Common Stock for which
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<PAGE>
options may be granted pursuant to the 1996 Employee Stock Option Plan is
470,400, subject to certain adjustments reflecting changes in the Company's
capitalization, of which 74,953 were granted and outstanding as of March 31,
1997. The 1996 Employee Stock Option Plan must be administered by the Board of
Directors of the Company and/or by a duly appointed committee of the Board of
Directors. The 1996 Employee Stock Option Plan is currently administered by the
Executive Compensation Committee. The Executive Compensation Committee
determines, among other things, which officers, employees, directors,
consultants, advisors and contractors will receive options under the plan, the
type of option (incentive stock options or non-qualified stock options, or both)
to be granted, vesting, the number of shares subject to each option, and,
subject to certain conditions discussed below, the exercise price of the option
and duration of the options. Members of the Executive Compensation Committee are
not eligible to receive options under the plan.
The exercise price of incentive stock options is determined by the
Executive Compensation Committee, but may not be less than the fair market value
of the Common Stock on the date of grant and the term of any such option may not
exceed ten years from the date of grant. With respect to any participant in the
1996 Employee Stock Option Plan who owns stock representing more than 10% of the
voting power of the outstanding capital stock of the Company, the exercise price
of any incentive stock option may not be less than 110% of the fair market value
of the Common Stock on the date of grant and the term of such option may not
exceed five years from the date of grant.
The exercise price of non-qualified stock options is determined by the
Executive Compensation Committee on the date of grant, but may not be less than
85% of the fair market value of the Common Stock on the date of grant, and the
term of such option may not exceed ten years from the date of grant.
Payment of the exercise price may be made by cash, check or cash
equivalent, by tender of shares of Common Stock then owned by the optionee, by a
recourse promissory note in a form approved by the Company, by the assignment of
the proceeds of the sale of some or all of the shares of Common Stock being
acquired upon the exercise of an option or by any combination of the foregoing.
Options may be granted which do not permit all of the foregoing forms of
payment. Options granted pursuant to the 1996 Employee Stock Option Plan are not
transferable, except by will or the laws of descent and distribution in the
event of death. During an optionee's lifetime, the option is exercisable only by
the optionee. Options granted through May 1, 1997 under the 1996 Employee Stock
Option Plan vest at an annual rate of 25%.
The Board of Directors has the right at any time and from time to time to
terminate or amend the 1996 Employee Stock Option Plan or any option without the
consent of the Company's shareholder or optionees; provided, that no such action
may adversely affect options previously granted without the optionee's consent,
and provided further that no such action, without the approval of the
stockholders of the Company, may increase the total number of shares of Common
Stock which may be purchased pursuant to options under the 1996 Employee Stock
Option Plan and expand the class of persons eligible to receive grants of
options under the plan. The expiration date of the 1996 Employee Stock Option
Plan, after which no option may be granted thereunder, is April 22, 2006.
SAVINGS PLAN
The Company maintains a savings program for employees (the 'Savings Plan'),
which is qualified under Section 401(a) and 401(k) of the Code. All employees of
the Company who have attained the age of 18 and have completed one half year of
service with the Company are eligible to participate in the Savings Plan. The
Savings Plan provides that each participant may make elective contributions from
1% to 15% of his or her compensation, subject to statutory limits. For each
eligible employee who elects to participate in the Savings Plan and makes a
contribution thereto, the Company makes a matching contribution. The matching
contribution is 50% of the first 5% of compensation contributed by the employee
to the Savings Plan. Contributions to the Savings Plan are invested, as the
employee directs, in a choice of mutual funds administered by Merrill Lynch &
Co. All contributions made by participants are fully vested when made. Matching
contributions made by the Company to the Savings Plan vest at a rate of 20%
after the second anniversary of the employee's date of hire by the Company and
at a rate of an additional 20% on each anniversary date of hire thereafter.
Distributions from the Savings Plan generally will be made only upon retirement
or other termination of employment, unless deferred by the participant.
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<PAGE>
DIRECTORS STOCK OPTION PLAN
The Board of Directors adopted the Directors Stock Option Plan in May 1997.
A total of 35,000 shares of Common Stock have been authorized for issuance under
the Directors Stock Option Plan, of which no shares are subject to the
outstanding options.
All directors serving as such on or after the closing of the Offering who
are not employees of the Company ('Director Participants') are eligible to
receive options under the Directors Stock Option Plan. The Directors Stock
Option Plan is administered by the Executive Compensation Committee which
determines the time when options will be granted, the terms of the options, the
initial exercise date of the options and the number of shares of Common Stock
subject to the options. The term of such options may not exceed ten years from
the date of grant.
The exercise price of each option is 100% of the fair market value of the
Common Stock on the date of grant. Options provided under the Directors Stock
Option Plan fully vest on the second anniversary of the date of grant and are
subject to certain other restrictions at the Executive Compensation Committee's
sole discretion. Options will also generally vest immediately by the holder
thereof prior to the effective date of a change of control of the Company.
Effective upon the completion of the Offering, the Board of Directors adopted a
resolution providing for the grant to each Director Participant upon each
anniversary of such Director Participant's joining the Board of Directors
options to purchase 500 shares of Common Stock. No options have been granted to
date under the Directors Stock Option Plan.
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<PAGE>
CERTAIN TRANSACTIONS
On November 12, 1996, Waring Investments, Inc. ('Waring'), a company in
which David B. Spector is a principal shareholder, borrowed $200,000 from the
Company, at an interest rate of 8.75%. The loan, together with accrued interest,
was repaid on February 25, 1997.
From July 1995 through October 1995, Waring borrowed $150,000 from the
Company at an interest rate of 12.0%. The loan was repaid from January 1996
through March 1996.
On January 8, 1995, Dr. Allen Schick loaned the Company $150,000. The loan
was convertible into shares of Common Stock, valued at $1.52 per share. Dr.
Schick converted the loan into 98,823 shares of Common Stock in December 1995.
PRINCIPAL STOCKHOLDERS
The following table sets forth certain information regarding the beneficial
ownership of outstanding shares of Common Stock, as of the date of this
Prospectus, by (i) each person known to the Company to be the beneficial owner
of more than 5% of the outstanding shares of Common Stock, (ii) each director of
the Company, (iii) each executive officer of the Company (including the Named
Executives) and (iv) all executive officers and directors of the Company, as a
group. All information with respect to beneficial ownership has been furnished
to the Company by the respective stockholders.
BENEFICIAL OWNERSHIP
-------------------------------------
PERCENTAGE OF
OUTSTANDING
SHARES
---------------------
NAME AND ADDRESS OF NUMBER BEFORE AFTER
BENEFICIAL OWNER OF SHARES OFFERING OFFERING
- ------------------------------------ --------- -------- --------
David B. Schick(1).................. 2,276,515(2) 28.59% 23.44%
Fred Levine(1)...................... 84,784(3) 1.06% *
Daniel Neugroschl(1)................ 343,191(4) 4.31% 3.53%
Zvi Raskin(1)....................... 44,800(5) * *
Jonathan Singer(1).................. 328,373(6) 4.12% 3.38%
David B. Spector, C.P.A.(1)......... 28,000(7) * *
Mark I. Bane(8)..................... 296,800(9) 3.73% 3.06%
Euval S. Barrekette(10)............. 117,040 1.47% 1.21%
Allen Schick(11).................... 518,824(12) 6.52% 5.34%
Howard Wasserman(13)................ 140,000(14) 1.76% 1.44%
All executive officers and directors
as a group (11 persons)........... 4,178,326 52.21% 42.84%
- ------------------
* Represents less than 1%.
(1) Such person's business address is c/o Schick Technologies, Inc., 31-00 47th
Avenue, Long Island City, New York 11101.
(2) Consists of 2,270,800 shares held jointly by Mr. Schick and his wife and
5,715 shares issuable upon the exercise of stock options granted to Mr.
Schick under the 1996 Employee Stock Option Plan.
(3) Includes 392 shares issuable upon the exercise of Warrants. Includes 28,000
shares issuable upon the exercise of options granted to Mr. Levine in
January 1996.
(4) Includes 5,791 shares issuable upon the exercise of stock options granted
to Mr. Neugroschl under the 1996 Employee Stock Option Plan.
(5) Consists of 44,800 shares held jointly by Mr. Raskin and his wife.
(6) Consists of 322,000 shares held jointly by Mr. Singer and his wife and
6,373 shares issuable upon the exercise of stock options granted to Mr.
Singer under the 1996 Employee Stock Option Plan.
(7) Consists of 28,000 shares held jointly by Mr. Spector and his wife.
(Footnotes continued on next page)
44
<PAGE>
(Footnotes continued from previous page)
(8) Mr. Bane's address is c/o Kelley Drye & Warren LLP, 101 Park Avenue, New
York, New York 10178.
(9) Consists of 296,800 shares owned by Mr. Bane's wife. Mr. Bane disclaims
beneficial ownership of such shares.
(10) Dr. Barrekette's address is 90 Riverside Drive, New York, New York 10024.
(11) Dr. Schick's address is 1222 Woodside Parkway, Silver Spring, Maryland
20910.
(12) Consists of 474,024 shares held jointly by Dr. Schick and his wife and
44,800 shares held by Dr. Schick as custodian for the minor children of
David Schick. Dr. Schick disclaims beneficial ownership of such 44,800
shares.
(13) Dr. Wasserman's address is 141-19 73rd Avenue, Flushing, New York 11367.
(14) Consists of 112,000 shares owned by Mr. Wasserman's wife and 28,000 shares
held by Mr. Wasserman as custodian for his minor children. Mr. Wasserman
disclaims beneficial ownership of all such shares.
DESCRIPTION OF CAPITAL STOCK
The description set forth below describes the Certificate of Incorporation
and the By-Laws, which will become effective prior to the date of this
Prospectus, and the Warrants. See 'The Company.' The description set forth below
does not purport to be complete and is qualified by reference to the Certificate
of Incorporation, the By-Laws and the Warrants, which have been filed as
exhibits to this Registration Statement.
GENERAL
The authorized capital stock of the Company consists of 25,000,000 shares
of Common Stock, par value $.01 per share, and 2,500,000 shares of Preferred
Stock, par value $0.01 per share (the 'Preferred Stock'). As of the date of this
Prospectus, there are 7,957,231 shares of Common Stock outstanding and 526,470
shares of Common Stock reserved for issuance upon the exercise of the Warrants,
options under the Option Plans and options granted prior to the implementation
of the Option Plans. After giving effect to the Offering, there will be
9,707,231 shares of Common Stock outstanding and 1,087,870 shares of Common
Stock so reserved. As of the date of this Prospectus, there are no shares of
Preferred Stock outstanding or reserved for issuance.
COMMON STOCK
The holders of shares of Common Stock are entitled to one vote per share
held on all matters submitted to a vote at a meeting of stockholders. Each
stockholder may exercise such vote either in person or by proxy. Stockholders
are not entitled to cumulate their votes for the election of directors, which
means that, subject to such rights as may be granted to the holders of shares of
Preferred Stock issued after this offering, the holders of more than 50% of the
outstanding shares of Common Stock are able to elect all of the directors to be
elected by holders of shares of Common Stock and the holders of the remaining
shares of Common Stock will not be able to elect any director. Subject to such
preferences to which holders of shares of Preferred Stock, if any, issued after
this offering may be entitled, the holders of outstanding shares of Common Stock
are entitled to receive ratably such dividends, if any, as may be declared from
time to time by the Board of Directors out of funds legally available therefor.
See 'Dividend Policy.' In the event of a liquidation, dissolution or winding up
of the Company, the holders of outstanding shares of Common Stock are entitled
to share ratably in all assets of the Company which are legally available for
distribution to stockholders, subject to the prior rights on liquidation of
creditors and to preferences, if any, to which holders of shares of Preferred
Stock, if any, issued after the Offering may be entitled. The holders of
outstanding shares of Common Stock do not have any preemptive, subscription,
redemption or sinking fund rights. The outstanding shares of Common Stock are,
and the Shares will upon issuance and sale as contemplated hereby be, duly
authorized, validly issued, fully paid and nonassessable.
WARRANTS
From May 1996 to August 1996, the Company privately issued and sold 520,315
shares of Common Stock and non-redeemable Warrants to purchase up to 520,315
shares of Common Stock for aggregate net proceeds of $4,311,800. In conjunction
with the Offering, the Company issued 6,155 units, consisting of 6,155 shares of
Common Stock and 6,155 non-redeemable Warrants to purchase shares of Common
Stock, as a placement fee to
45
<PAGE>
certain individuals who assisted the Company in selling the units. All of the
Warrants are outstanding as of the date of this Prospectus. Each Warrant
entitles the holder thereof to purchase one share of Common Stock at prices
ranging from $7.86 to 8.93 per share on or prior to the earlier of (i) 5:00 p.m.
New York City time on May 3, 1999 or (ii) the merger or consolidation of the
Company or the sale of all or substantially all of the Company's assets (the
'Expiration Date'). The Company is required to give each holder of a Warrant at
least twenty days prior written notice of any such merger, consolidation or
sale. The exercise price of the Warrants is payable in cash or outstanding
shares of Common Stock. In lieu of the exercise of a Warrant, the holder of a
Warrant may elect prior to the Expiration Date to receive that number of shares
of Common Stock equal to the value of the Warrant determined by multiplying the
number of shares of Common Stock that could be purchased upon exercise of the
Warrant by the difference between the fair market value of one share of Common
Stock and the exercise price and dividing this result by the fair market value
of one share of Common Stock on the date of such election.
The holders of Warrants are entitled to anti-dilution protection for stock
dividends, stock splits and similar events. Prior to the exercise of Warrants,
such holders of Warrants do not have any rights of a stockholder, including the
right to vote or to receive dividends or other distributions.
PREFERRED STOCK
The Board of Directors has the authority to issue shares of Preferred Stock
in one or more series and to fix the rights, preferences, privileges and
restrictions thereof, including dividend rights, dividend rates, conversion
rights, voting rights, terms of redemption (including sinking fund provisions),
redemption prices and liquidation preferences, and the number of shares
constituting and the designation of any such series, without approval by the
stockholders.
CERTAIN EFFECTS OF AUTHORIZED AND UNISSUED STOCK
The unissued and unreserved shares of capital stock may be issued for a
variety of proper corporate purposes, including future public or private
offerings to raise additional capital or facilitate acquisitions. The Board of
Directors currently does not have any plans to issue additional shares of Common
Stock or shares of Preferred Stock (other than in connection with the Warrants
and the Option Plans).
One of the effects of the existence of such unissued and unreserved shares
may be to enable the Board of Directors to discourage an attempt to change
control of the Company (by means of a tender offer, proxy contest or otherwise)
and thereby to protect the continuity of the Company's management. The issuance
of shares of Preferred Stock, whether or not related to any attempt to effect
change in control, may adversely affect the rights of the holders of shares of
Common Stock.
CERTAIN CHARTER AND STATUTORY PROVISIONS
Certain provisions of the Certificate of Incorporation, the By-Laws and
Delaware law may (i) discourage an attempt to change control of the Company (by
means of a proxy contest, tender offer or otherwise) and consideration of
stockholder proposals (such as proposals regarding the reorganization,
restructuring or liquidation of the Company or the sale of all or a substantial
part of the Company's assets) and (ii) limit the ultimate liability of directors
and executive officers of the Company for breaches of certain of their duties to
the Company and its stockholders.
Elimination of Director Liability. Under Delaware law, directors of a
Delaware corporation can generally be held liable for certain acts and omissions
in connection with the performance of their duties to the corporation and its
stockholders. As permitted by Delaware law, however, the Certificate of
Incorporation contains a provision eliminating the liability of directors for
monetary damages for breaches of their duties to the Company and its
stockholders. Such provision does not, however, eliminate liability for (i)
breaches of duty of loyalty to the Company and its stockholders, (ii) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) transactions from which improper personal benefit is
derived and (iv) unlawful declaration of dividends or repurchases or redemptions
of shares of capital stock. Such provision applies to officers only if they are
directors and are acting in their capacity as directors and may have no effect
on claims arising under federal securities laws. Such provision does not
eliminate the duty of care, but only eliminates liability for monetary damages
for breaches of such duty under various circumstances. Accordingly, such
provision has no effect on the availability of equitable remedies, such as an
injunction or rescission, based
46
<PAGE>
upon a breach of the duty of care. Equitable remedies may not, however, be
wholly effective to remedy the injury caused by any such breach.
Statutory Provisions Regarding Business Combinations. The Company is
subject to Section 203 of the DGCL. In general, Section 203 prohibits an
'interested stockholder' of a Delaware corporation from engaging in a 'business
combination' with such Delaware corporation for three years following the date
such person became an interested stockholder, unless: (i) prior to the date such
person became an interested stockholder, the board of directors of the
corporation approved the transaction in which the interested stockholder became
an interested stockholder or approved the business combination; (ii) upon
consummation of the transaction that resulted in the interested stockholder
becoming an interested stockholder, the interested stockholder owns at least 85%
of the voting stock of the corporation outstanding at the time the transaction
commenced, excluding stock held by directors who are also officers of the
corporation and stock held by certain employee stock plans; or (iii) on or
subsequent to the date of the transaction in which such person became an
interested stockholder, the business combination is approved by the board of
directors of the corporation and authorized at a meeting of stockholders by the
affirmative vote of the holders of at least two-thirds of the outstanding voting
stock of the corporation not owned by the interested stockholder.
Section 203 defines a 'business combination' to include: (i) any merger or
consolidation involving the corporation and an interested stockholder; (ii) any
sale, transfer, pledge or other disposition involving an interested stockholder
of 10% or more of the assets of the corporation; (iii) subject to certain
exceptions, any transaction which results in the issuance or transfer by the
corporation of any stock of the corporation to an interested stockholder; (iv)
any transaction involving the corporation which has the effect of increasing the
proportionate share of any class or series of stock of the corporation
beneficially owned by the interested stockholder; or (v) the receipt by an
interested stockholder of any loans, guarantees, pledges or other financial
benefits provided by or through the corporation. In addition, Section 203
generally defines an 'interested stockholder' as any entity or person
beneficially owning 15% or more of the outstanding voting stock of the
corporation and any entity or person affiliated with or controlling or
controlled by such entity or person.
Indemnification of Officers and Directors. The By-Laws provide that the
Company shall (i) indemnify each person who is or was involved in any legal
proceeding because he is or was a director or officer of the Company or any of
its subsidiaries (or is or was serving at the request of the Company as a
director, officer, partner, member, employee, agent or trustee of another
entity) against all expenses, liabilities and losses (including attorneys' fees,
judgments, fines, excise taxes, penalties and amounts paid in settlement)
reasonably incurred or suffered by him in connection therewith and (ii) pay the
expenses incurred in defending such proceeding in advance of its final
disposition, in each case, to the fullest extent authorized by Delaware law (as
currently in effect or, to the extent that the provisions of Delaware law so
authorizing are broadened, as it may be amended). The By-Laws further provide
that (i) persons entitled to indemnification may bring suit against the Company
to recover unpaid indemnification or payment claimed to be due thereunder, (ii)
if the suit is successful, the expense of bringing the suit will be paid by the
Company, (iii) while it is a defense to the suit that the claimant has not met
the standards of conduct making indemnification or payment permissible under
Delaware law, the burden of proving the defense will be on the Company and (iv)
neither the failure of the Board of Directors to have made a determination that
indemnification is proper nor its affirmative determination that the claimant
has not met such standards of conduct will be a defense to the suit or create a
presumption that the claimant has not met such standards of conduct. In
addition, the By-Laws provide that (i) the rights to indemnification and payment
of expenses so provided are not exclusive of any other similar right that any
person may have or acquire under any statute or otherwise, (ii) the Company has
the right to enter into indemnification contracts or otherwise arrange for
indemnification of directors and officers that may be broader than the
indemnification so provided and (iii) the Company may maintain, at its expense,
insurance to protect itself and its directors and officers against any expense,
liability or loss, whether or not it would have the power to indemnify such
directors and officers against such expense, liability or loss under the By-Laws
or Delaware law. The Company currently maintains a policy providing insurance to
its directors and officers against certain losses and expenses arising out of
certain claims, including claims arising in connection with this offering.
Other Provisions. The By-Laws provide that the number of directors shall
be between five and twelve or such greater or lesser number as may be fixed from
time to time by the Board of Directors and that, except as otherwise required by
Delaware law, directors (other than those elected by the holders of shares of
Preferred
47
<PAGE>
Stock, if any) can be removed only for cause and only by the affirmative vote of
holders of at least 75% of the voting power of all then outstanding shares of
capital stock of the Company entitled to vote generally for the election of
directors (the 'Voting Stock') and that a vacancy on the Board of Directors,
including a vacancy created by an increase in the authorized number of
directors, may be filled only by a majority vote of the directors then in office
(and not by the stockholders unless no directors are then in office). Under the
DGCL, if at the time of filling any such vacancy the directors then in office
constitute less than a majority of the Whole Board, the Delaware Court of
Chancery may order, upon the application of the holders of at least 10% of the
outstanding shares of capital stock of the Company entitled to vote for the
election of the directors filling such vacancies, that a meeting of stockholders
be held for the purpose of electing directors to fill such vacancies or to
replace directors filling such vacancies elected by the Board of Directors.
In addition, the Certificate of Incorporation and the By-Laws provide that
(i) stockholders are not permitted to call a special meeting of stockholders or
to require the Board of Directors or officers to call such a special meeting;
(ii) only a majority of the Board of Directors, certain committees of the Board
of Directors, certain directors or the president or chief executive officer will
be able to call such a special meeting; and (iii) stockholder action may be
taken only at an annual or a special meeting of stockholders and may not be
taken by written consent. These provisions, taken together, prevent stockholders
from forcing consideration by the stockholders of stockholder proposals over the
opposition of the Board of Directors, except at an annual meeting.
The By-Laws provide that notice of nominations for the election of
directors to be made at, and business to be brought before, an annual or a
special meeting of stockholders by a stockholder must be received by the
Secretary of the Company not later than 90 days before the meeting (except that,
if notice or public disclosure of the meeting is given or made less than 90 days
before the meeting, the notice need only be received within 10 days following
such notice or public disclosure). A notice regarding any nomination must
contain detailed information regarding the stockholder making the nomination and
each nominee. A notice regarding any business to be brought before the meeting
must contain detailed information regarding the business to be so brought, the
reasons for conducting such business at the meeting, the stockholder proposing
such business and any material interest of such stockholder in such business.
Although such provisions do not give the Board of Directors any power to approve
or disapprove stockholder nominations or proposals, they have the effect of
precluding a contest for the election of directors or the consideration of
stockholder proposals if the procedures established by the By-Laws are not
complied with and may have the effect of discouraging a stockholder from
conducting such a contest.
The By-Laws provide that none of the shares of Common Stock outstanding on
the effective date of a registration statement filed by the Company with the
Commission relating to a firm commitment underwritten intial public offering of
shares of Common Stock by the Company (including the Registration Statement) can
be resold, and the Warrants provide and the options granted under the Option
Plans provide that no shares of Common Stock issued upon exercise thereof can be
resold to the public for a period of 180 days after such effective date without
the prior written consent of the Board of Directors. The Company has agreed that
no such consent will be given without the prior written consent of Lehman
Brothers Inc.
The Certificate of Incorporation authorizes the Board of Directors, in
connection with taking any action, to consider factors other than the economic
benefit of such action to the stockholders. Such factors include the long-term
and short-term interests of the Company's employees, suppliers, creditors and
customers and of the communities in which the Company engages in business.
The Certificate of Incorporation provides that the affirmative vote of the
holders of 75% of the outstanding shares of Common Stock will be required to
amend, modify or repeal any provision of the By-Laws or the provisions of the
Certificate of Incorporation discussed under 'Management--Directors and
Executive Officers' and 'Certain Charter and Statutory Provisions.' The
Certificate of Incorporation provides that the Board of Directors, pursuant to
(but only pursuant to) a resolution adopted by a majority of the Whole Board,
will be able to amend, modify or repeal the By-laws.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is The American Stock
Transfer & Trust Company, 40 Wall Street, New York, New York 10005.
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SHARES ELIGIBLE FOR FUTURE SALE
Upon the closing of the Offering, the Company will have outstanding
9,707,231 shares of Common Stock (9,969,731 shares, if the over-allotment option
is exercised in full). In addition, the Company has reserved 1,087,870 shares of
Common Stock for issuance upon exercise of the Warrants, options granted under
the Option Plans and options granted prior to implementation of the Option
Plans. Of such outstanding shares, the Shares will be freely tradeable in the
United States without restriction under the Securities Act, except that shares
purchased by an 'affiliate' of the Company, within the meaning of the rules and
regulations adopted under the Securities Act, may be subject to resale
restrictions. The remaining 7,957,231 outstanding shares of Common Stock and any
of the shares issued pursuant to the Warrants and the Option Plans are
'restricted securities' as that term is defined under such rules and
regulations, and may not be sold unless they are registered under the Securities
Act or they are sold in accordance with Rule 144 under the Securities Act or
some other exemption from such registration. Outstanding shares held by
affiliates of the Company, and restricted Shares held by any person, may not be
sold to the public other than pursuant to an effective registration statement or
Rule 144 or some other exemption from registration under the Securities Act.
In general, under Rule 144, a person (or persons whose shares are
aggregated), including persons deemed to be affiliates of the Company, who owns
restricted shares of Common Stock where one year has elapsed from the date of
acquisition of such restricted shares from the Company or an affiliate of the
Company, is entitled to sell in brokers' transactions within any three-month
period that number of restricted shares that does not exceed the greater of one
percent of the then outstanding shares of Common Stock (99,697 shares based on
the number of shares to be outstanding immediately after the Offering, assuming
the over-allotment option is exercised in full) or the average weekly trading
volume in the Common Stock during the four calendar weeks immediately preceding
such sale, subject to the filing of a Form 144 with respect to the sale and
availability of current public information about the Company. After two years
have elapsed from the date of such acquisition, such a person, other than
persons who are deemed to be or are deemed to have been within the preceding
three months affiliates of the Company, is entitled to sell such restricted
shares without regard to the manner-of-sale, volume and current public
information requirements of Rule 144.
Subject to the restrictions described in the following paragraph, the
one-year period for 7,260,656 of such remaining shares of Common Stock has
expired and are immediately available for resale. The one-year period for
430,931 of such remaining shares will expire on July 30, 1997, 116,173 of such
remaining shares will expire on August 29, 1997, with the remaining shares
expiring on February 18, 1998. In addition, the Company intends to register for
resale to the public the shares of Common Stock reserved for issuance under the
Option Plans. Furthermore, holders of Warrants who pay the exercise price of
their Warrants with shares of Common Stock purchased at the same time would be
able to use the holding period of such shares in determining whether such one
year period has elapsed.
The Company and each of its directors and executive officers has agreed not
to, directly or indirectly, offer for sale, sell or otherwise dispose of (or
enter into any transaction or device which is designed to, or could be expected
to, result in the disposition by any person at any time in the future of) any
shares of Common Stock, or sell or grant options, rights or warrants with
respect to any shares of Common Stock, for a period of 180 days after the date
of this Prospectus without the prior written consent of Lehman Brothers Inc., on
behalf of the Representatives, except, in the case of the Company, upon exercise
of the Warrants or outstanding stock options granted under the Option Plans and
for the grant of stock options under the Option Plans. In addition, pursuant to
the terms of the By-Laws, none of the Company's stockholders who were
stockholders of the Company prior to the Offering will be permitted to sell or
otherwise dispose of any shares of Common Stock for a period of 180 days after
the date of this Prospectus without the prior written consent of the Company.
The Company has agreed that no such consent will be given without the prior
written consent of Lehman Brothers Inc. The Company has agreed that no such
consent will be given without the prior written consent of Lehman Brothers Inc.
In addition, pursuant to the terms of the Option Plans and the Warrants, any
shares of Common Stock issuable upon the exercise of Options or Warrants will
not be transferable for a period of 180 days after the date of this Prospectus
without the prior written consent of the Company. The Company has agreed that no
such consent will be given without the prior written consent of Lehman Brothers
Inc.
Prior to the Offering, there has been no public market for the Common
Stock, and no assurance can be given that such a market will develop or, if it
develops, will be sustained after the Offering or that the purchasers of the
Shares will be able to resell Shares at a price higher than the intial public
offering price or otherwise. If such a market develops, no prediction can be
made as to the effect, if any, that future sales of shares of Common Stock, or
the availability of shares of Common Stock for future sale, to the public will
have on the market price of the Common Stock prevailing from time to time. Sales
of substantial amounts of Common Stock in the public market, whether such shares
are presently outstanding for subsequently issued, or the perception that such
sales could occur, could adversely affect prevailing market prices for the
Common Stock and could impair the
49
<PAGE>
Company's ability to raise capital in the future through an offering of its
equity securities. The Company cannot predict when or how many of such
additional shares of Common Stock may be offered for sale or sold to the public
in the future.
UNDERWRITING
Under the terms and subject to the conditions contained in an Underwriting
Agreement dated the date of this Prospectus (the 'Underwriting Agreement'), the
Underwriters named below (the 'Underwriters'), for whom Lehman Brothers Inc.,
J.P. Morgan Securities Inc. and Pacific Growth Equities, Inc. are acting as
representatives (the 'Representatives'), have severally agreed to purchase, and
the Company has agreed to sell, the respective number of Shares set forth
opposite the name of each such Underwriter below:
NUMBER OF
UNDERWRITER SHARES
- -------------------------------- ---------
Lehman Brothers Inc. ...........
J.P. Morgan Securities Inc. ....
Pacific Growth Equities, Inc. ..
Total....................
---------
---------
The Company has been advised that the Underwriters propose to offer part of
the Shares directly to the public at the initial public offering price set forth
on the cover page hereof and part to certain dealers at a price which represents
a concession not in excess of $ per Share under the initial public offering
price. Any Underwriter may allow, and such dealers may reallow, a concession not
in excess of $ per Share to other Underwriters and certain other
dealers. After the initial public offering, the offering price and other selling
terms may from time to time be changed by the Underwriters.
The Underwriting Agreement provides that the obligations of the
Underwriters to pay for and accept delivery of the Shares are subject to the
approval of certain matters by their counsel and to certain other conditions,
including the conditions that no stop order suspending the effectiveness of the
Registration Statement is in effect, that no proceedings for such purpose have
been initiated or threatened by the Commission and that there has been no
material adverse change or any development involving a prospective material
adverse change in the business, financial condition or results of operations of
the Company from that set forth in the Registration Statement, and that certain
certificates, opinions and letters have been received from the Company and its
counsel and independent auditors. The Underwriters are obligated to take and pay
for all of the Shares (other than those covered by the over-allotment option
described below) if any such Shares are taken.
The Company and the Underwriters have agreed to indemnify each other
against certain liabilities, including liabilities under the Securities Act.
Pursuant to the Underwriting Agreement, the Company has granted the
Underwriters an option, exercisable at any time until 30 days after the date of
this Prospectus, to purchase up to 262,500 additional Shares at the initial
public offering price set forth on the cover page hereof, less underwriting
discounts and commissions. The Underwriters may exercise such option solely for
the purpose of covering over-allotments, if any, incurred in connection with the
sale of the Shares. To the extent such option is exercised, each Underwriter
will be committed, subject to certain conditions, to purchase a number of
additional shares of Common Stock proportionate to such Underwriter's Shares set
forth opposite such Underwriter's name in the preceding table.
The Company and each of its directors and executive officers has agreed not
to, directly or indirectly, offer for sale, sell or otherwise dispose of (or
enter into any transaction or device which is designed to, or could be expected
to, result in the disposition by any person at any time in the future of) any
shares of Common Stock, or sell or grant options, rights or warrants with
respect to any shares of Common Stock, for a period of 180 days after the date
of this Prospectus without the prior written consent of Lehman Brothers Inc., on
behalf of the
50
<PAGE>
Representatives, except, in the case of the Company, upon exercise of the
Warrants or outstanding stock options granted under the Option Plans and for the
grant of stock options under the Option Plans. In addition, pursuant to the
terms of the By-Laws, none of the Company's stockholders who were stockholders
of the Company prior to the Offering will be permitted to sell or otherwise
dispose of any shares of Common Stock for a period of 180 days after the date of
this Prospectus without the prior written consent of the Company. The Company
has agreed that no such consent will be given without the prior written consent
of Lehman Brothers Inc.
The Representatives have informed the Company that the Underwriters do not
intend to confirm sales to any accounts over which they exercise discretionary
authority.
Prior to the Offering, there has been no public market for the Common
Stock. The initial public offering price for the Shares will be determined by
negotiations between the Company and the Representatives. Among the factors
which will be considered in determining the initial public offering price
include the information set forth in this Prospectus and otherwise available to
the Representatives, the history of and the prospects for the industry in which
the Company operates, the assessment of the Company's management, the past and
present operations of the Company, the historical results of operations, the
prospects for future earnings of the Company, the present state of the Company's
development, the general condition of the securities markets at the time of the
Offering and the recent market prices of and the demand for publicly traded
common stock of generally comparable companies.
LEGAL MATTERS
The validity of the Shares will be passed upon for the Company by Kelley
Drye & Warren LLP, New York, New York. Mark I. Bane, a director and stockholder
of the Company, is a partner of Kelley Drye & Warren LLP. See 'Management' and
'Principal Stockholders.' Certain legal matters in connection with the Offering
will be passed upon for the Underwriters by Chadbourne & Parke LLP, New York,
New York.
EXPERTS
The financial statements of the Company as of March 31, 1996 and 1997, and
for each of the three years in the period ended March 31, 1997 included in this
Prospectus have been so included in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
51
<PAGE>
SCHICK TECHNOLOGIES, INC.
INDEX TO FINANCIAL STATEMENTS
PAGE
----
Report of Independent Accountants........................................ F-2
Balance Sheet as of March 31, 1996 and 1997.............................. F-3
Statement of Operations for the years ended March 31, 1995, 1996
and 1997.............................................................. F-4
Statement of Changes in Stockholders' Equity for the years ended
March 31, 1995, 1996 and 1997......................................... F-5
Statement of Cash Flows for the years ended March 31, 1995, 1996
and 1997.............................................................. F-6
Notes to Financial Statements............................................ F-7
F-1
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors
and Shareholders of Schick Technologies, Inc.
The recapitalization described in Note 15 to the accompanying financial
statements has not been consummated at May 13, 1997. When it has been
consummated, we will be in a position to furnish the following report:
'In our opinion, the accompanying balance sheet and the related statements
of operations, of changes in stockholders' equity and of cash flows present
fairly, in all material respects, the financial position of Schick
Technologies, Inc. at March 31, 1997 and 1996, and the results of its
operations and its cash flows for each of the three years in the period
ended March 31, 1997 in conformity with generally accepted accounting
principles. These financial statements are the responsibility of the
Company's management; our responsibility is to express an opinion on these
financial statements based on our audits. We conducted our audits of these
statements in accordance with generally accepted auditing standards which
require that we plan and perform the audit to obtain reasonable assurance
about whether the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting the amounts
and disclosures in the financial statements, assessing the accounting
principles used and significant esitmates made by management, and evaluating
the overall financial statement presentation. We believe that our audits
provide a reasonable basis for the opinion expressed above.'
Price Waterhouse LLP
New York, New York
May 9, 1997
F-2
<PAGE>
SCHICK TECHNOLOGIES, INC.
BALANCE SHEET
MARCH 31,
--------------------------
1996 1997
----------- -----------
ASSETS
Current assets
Cash and cash equivalents (Note 2).............. $ 524,917 $ 1,710,429
Short-term investments (Notes 2 and 5).......... -- 2,313,226
Accounts receivable, net of allowance for
doubtful accounts of $35,000 in 1996 and
$50,000 in 1997.............................. 944,912 1,927,993
Inventories (Notes 2 and 3)..................... 1,958,213 2,510,959
Prepayments and other current assets (including
amounts from related parties of $33,456 in
1997) (Note 13).............................. 160,708 327,220
----------- -----------
Total current assets......................... 3,588,750 8,789,827
Equipment, net (Notes 2 and 4).................... 748,894 1,644,528
Investments (Notes 2 and 5)....................... -- 490,000
Other assets...................................... 57,512 135,727
----------- -----------
Total assets................................. $ 4,395,156 $11,060,082
----------- -----------
----------- -----------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable and accrued expenses........... $ 1,482,352 $ 2,102,293
Accrued salaries and commissions................ 147,201 540,061
Provision for warranty obligations.............. 130,055 329,426
Deferred revenue................................ -- 141,017
Deposits from customers......................... 84,137 136,628
Capital lease obligations, current (Note 9)..... 4,865 22,200
Short-term debt (Note 6)........................ 500,000 --
----------- -----------
Total current liabilities.................... 2,348,610 3,271,625
----------- -----------
Notes payable (Note 6)............................ 647,500 1,512,833
Accrued interest on notes payable................. -- 101,654
Capital lease obligations, long term (Note 9)..... 30,128 86,991
Commitments (Note 9).............................. -- --
Stockholders' equity (Notes 1 and 15)
Preferred stock ($.01 par value; 2,500,000
shares authorized,
none issued and outstanding)................. -- --
Common stock ($.01 par value; 25,000,000 shares
authorized; 7,052,870 shares issued and
outstanding in 1996, 7,957,231 shares issued
and outstanding in 1997)..................... 70,529 79,572
Additional paid-in capital...................... 2,501,771 7,562,766
Accumulated deficit............................. (1,203,382) (1,555,359)
----------- -----------
Total stockholders' equity................... 1,368,918 6,086,979
----------- -----------
Total liabilities and stockholders' equity... $ 4,395,156 $11,060,082
----------- -----------
----------- -----------
The accompanying notes are an integral part of these financial statements.
F-3
<PAGE>
SCHICK TECHNOLOGIES, INC.
STATEMENT OF OPERATIONS
YEAR ENDED MARCH 31,
---------------------------------------
1995 1996 1997
---------- ---------- -----------
Revenue, net......................... $2,725,689 $6,803,723 $16,100,914
Cost of sales........................ 1,500,719 3,343,195 8,021,396
---------- ---------- -----------
Gross profit.................... 1,224,970 3,460,528 8,079,518
---------- ---------- -----------
Operating expenses
Selling and marketing.............. 516,893 1,619,444 4,961,071
General and administrative......... 560,017 1,388,215 2,087,615
Research and development........... 149,595 458,123 1,417,735
---------- ---------- -----------
Total operating expenses........ 1,226,505 3,465,782 8,466,421
---------- ---------- -----------
Loss from operations............ (1,535) (5,254) (386,903)
---------- ---------- -----------
Other income (expense)
Interest income.................... -- 15,132 195,895
Interest expense................... (22,003) (122,661) (160,969)
---------- ---------- -----------
Total other income (expense).... (22,003) (107,529) 34,926
---------- ---------- -----------
Net loss........................ $ (23,538) $ (112,783) $ (351,977)
---------- ---------- -----------
---------- ---------- -----------
Net loss per common share....... -- $ (0.02) $ (0.04)
---------- ---------- -----------
Weighted average shares
outstanding................... 7,050,798 7,219,385 8,124,787
---------- ---------- -----------
---------- ---------- -----------
The accompanying notes are an integral part of these financial statements.
F-4
<PAGE>
SCHICK TECHNOLOGIES, INC.
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
COMMON STOCK ADDITIONAL TOTAL
-------------------- PAID-IN ACCUMULATED STOCKHOLDERS'
SHARES AMOUNT CAPITAL DEFICIT EQUITY
--------- ------- ---------- ----------- -------------
<S> <C> <C> <C> <C> <C>
Balance at March 31, 1994............... 6,224,683 $62,247 $1,129,253 $(1,067,061) $ 124,439
Issuance and sale of common stock..... 143,780 1,438 223,562 -- 225,000
Net loss.............................. -- -- -- (23,538) (23,538)
--------- ------- ---------- ----------- -------------
Balance at March 31, 1995............... 6,368,463 63,685 1,352,815 (1,090,599) 325,901
Issuance of compensatory common stock
to employees, director and
others............................. 73,184 732 129,953 -- 130,685
Issuance of common stock upon
conversion of stockholder loans.... 126,823 1,268 198,732 -- 200,000
Issuance of common stock upon
conversion of notes payable........ 484,400 4,844 820,271 -- 825,115
Net loss.............................. -- -- -- (112,783) (112,783)
--------- ------- ---------- ----------- -------------
Balance at March 31, 1996............... 7,052,870 70,529 2,501,771 (1,203,382) 1,368,918
Issuance of common stock upon
conversion of notes payable........ 376,446 3,764 729,226 -- 732,990
Issuance and sale of common stock and
warrants........................... 526,470 5,265 4,306,535 -- 4,311,800
Issuance of compensatory stock options
to employees....................... -- -- 13,457 -- 13,457
Issuance of compensatory common stock
to an employee..................... 1,445 14 11,777 -- 11,791
Net loss.............................. -- -- -- (351,977) (351,977)
--------- ------- ---------- ----------- -------------
Balance at March 31, 1997............... 7,957,231 $79,572 $7,562,766 $(1,555,359) $ 6,086,979
--------- ------- ---------- ----------- -------------
--------- ------- ---------- ----------- -------------
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-5
<PAGE>
SCHICK TECHNOLOGIES, INC.
STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED MARCH 31,
---------------------------------------
1995 1996 1997
--------- ----------- -----------
Net cash flows from operating
activities
Net loss........................... $ (23,538) $ (112,783) $ (351,977)
Adjustments to reconcile net loss
to net cash used in operating
activities
Depreciation.................... 23,737 136,363 281,762
Amortization.................... -- 73,333 36,667
Stock and option grant
compensation.................. -- 130,685 25,248
Accrued interest on
investments................... -- -- (53,606)
Non-cash interest expense....... -- 51,080 98,323
Changes in assets and liabilities
Accounts receivable............. (436,520) (495,383) (983,081)
Inventories..................... (600,531) (1,232,800) (552,746)
Prepayments and other current
assets........................ (20,258) (140,050) (166,512)
Other assets.................... (1,663) (114,985) (114,882)
Accounts payable and accrued
expenses...................... 788,107 899,677 1,212,172
Deferred revenue................ -- -- 141,017
Deposits from customers......... (8,859) 68,327 52,491
Accrued interest on notes
payable....................... -- -- 101,654
--------- ----------- -----------
Net cash used in operating
activities................. (279,525) (736,536) (273,470)
--------- ----------- -----------
Cash flows from investing activities
Purchase of investments............ -- -- (7,608,783)
Proceeds from investment maturities
and redemptions................. -- -- 4,859,163
Capital expenditures............... (155,902) (569,614) (1,082,461)
--------- ----------- -----------
Net cash used in investing
activities................. (155,902) (569,614) (3,832,081)
--------- ----------- -----------
Cash flows from financing activities
Net proceeds from issuance and sale
of common stock and warrants.... -- -- 4,311,800
Net proceeds from issuance and sale
of common stock................. 225,000 -- --
Proceeds from issuance of long-term
notes........................... -- 1,457,500 1,000,000
Proceeds from issuance of
short-term notes................ 300,000 500,000 --
Repayments of short-term debt...... (136,824) (163,176) --
Repayments of loan payable to
stockholder..................... -- (50,000) --
Other.............................. -- (35,965) --
Principal payments on capital lease
obligations..................... -- (5,159) (20,737)
Borrowing under loan agreements
with stockholders............... 150,000 -- --
--------- ----------- -----------
Net cash provided by financing
activities................. 538,176 1,703,200 5,291,063
--------- ----------- -----------
Net increase in cash and cash
equivalents........................ 102,749 397,050 1,185,512
Cash and cash equivalents at
beginning of period................ 25,118 127,867 524,917
--------- ----------- -----------
Cash and cash equivalents at end of
period............................. $ 127,867 $ 524,917 $ 1,710,429
--------- ----------- -----------
--------- ----------- -----------
The accompanying notes are an integral part of these financial statements.
F-6
<PAGE>
SCHICK TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS
1. ORGANIZATION
Schick Technologies, Inc. ('Schick') was incorporated in June 1995 under
the laws of the State of New York as DBS Technologies Inc., whose sole purpose
was to merge with Schick Technologies, Inc., incorporated in 1992 under the laws
of the State of New York (the 'Predecessor Corporation'). The stockholders of
the Predecessor Corporation exchanged their shares of the Predecessor for an
equivalent number of shares of Schick. The merger of Schick and the Predecessor
was effected September 25, 1995 and pursuant to the merger agreement, Schick was
the surviving entity and assumed the name Schick Technologies, Inc. The merger
has been accounted for similar to a pooling of interests. References herein to
the operations and historical financial information of the 'Company' prior to
the date of the merger refer to the operations and historical financial
information of the Predecessor Corporation. Unless the context otherwise
requires, all other references herein to the 'Company' refer to Schick.
The Company is engaged in the design, development, manufacturing and
marketing of digital imaging systems and devices that utilize low dosage
radiation to produce instant computer generated high resolution electronic x-ray
images. The Company has initially targeted the dental industry and is a supplier
of an intra-oral computer dental X-ray imaging system to that industry. The
Company's products are sold worldwide.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Cash equivalents
Cash equivalents consist of short-term, highly liquid investments, with
original maturities of less than three months when purchased and are stated at
cost. Interest is accrued as earned. At March 31, 1997, approximately $700,000
of cash is restricted for use in development of a bone density measurement
device pursuant to a secured term loan agreement (see Note 6).
Investments
Investments with original maturities greater than three months and less
than one year when purchased are classified as short-term investments.
Investments with maturities of greater than one year when purchased are
classified as long-term investments. Investments are further categorized as
being available for sale or are expected to be held-to-maturity. Investments
categorized as available for sale are recorded at fair value based on
fluctuations of the market value of the securities, with the resulting
adjustments, net of deferred taxes, reported as a component of stockholder's
equity until realized. Investments categorized as held-to-maturity are carried
at amortized cost, without recognition of gains or losses that are deemed to be
temporary, because the Company has both the intent and the ability to hold these
investments until they mature (see Note 5).
Inventories
Inventories are stated at the lower of cost (determined on a first-in,
first-out basis) or market value.
Equipment
Equipment is stated at cost. Depreciation is provided on the straight-line
method over the estimated useful lives of the respective assets, none of which
exceeds seven years.
Initial public offering and deferred offering costs
On March 21, 1997 the Board of Directors of the Company authorized
management to pursue an underwritten sale of shares of the Company's common
stock in an initial public offering (the 'IPO') pursuant to the Securities Act
of 1933. In connection with the Company's proposed IPO, the Company has incurred
certain costs, in the aggregate amount of $35,000, which have been deferred at
March 31, 1997. In the event the proposed IPO is not consummated the deferred
offering costs will be expensed.
F-7
<PAGE>
SCHICK TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES--(CONTINUED)
Revenue recognition
Revenue from sales of the Company's hardware and software products is
recognized at the time of shipment to customers. Amounts received from customers
in advance of product shipment are classified as deposits from customers.
Revenues from the sale of extended warranties on the Company's products are
recognized on a straight-line basis over the life of the extended warranty,
which is generally for a one year period. Deferred revenues relate to extended
warranty fees which have been paid by customers prior to the performance of
extended warranty services.
Advertising costs
Advertising costs included in selling and marketing expenses are expensed
as incurred and approximated $151,000, $349,000 and $906,268 for the years ended
March 31, 1995, 1996 and 1997, respectively.
Warranties
The Company provides its customers with a limited product warranty for a
period of one year subsequent to the sale of its products. The Company
recognizes estimated costs associated with the limited warranty at the time of
sale of its products.
Research and development
Research and development costs consist of expenditures covering basic
scientific research and the application of scientific advances to the
development of new and improved products and their uses. Research and
development costs are expensed as incurred.
Software development costs incurred after the establishment of
technological feasibility are capitalized and amortized to cost of revenues on a
straight line basis over the expected useful life of the software. Software
development costs incurred prior to the attainment of technological feasibility
are considered research and development and are expensed as incurred. As of
March 31, 1997 the Company had no capitalized software development costs.
Income taxes
Income taxes are accounted for under the asset and liability method.
Deferred income taxes are recorded for temporary differences between financial
statement carrying amounts and the tax basis of assets and liabilities. Deferred
tax assets and liabilities reflect the tax rates expected to be in effect for
the years in which the differences are expected to reverse. A valuation
allowance is provided if it is more likely than not that some or all of the
deferred tax asset will not be realized.
Net loss per common share
Net loss per common share is computed using the weighted average number of
common shares and common share equivalents assumed to be outstanding during the
period. Common share equivalents consist of the Company's common shares issuable
upon conversion of stock options and outstanding warrants and are reflected when
dilutive. Pursuant to the requirements of the Securities and Exchange
Commission, stock options granted and warrants and shares issued by the Company
within one year of the date of the initial public offering at prices below the
proposed offering price have been included in the calculation of weighted
average shares outstanding as if they were outstanding for all periods presented
using the treasury stock method.
Accounting estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and the
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
F-8
<PAGE>
SCHICK TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES--(CONTINUED)
Reclassification
Certain prior year amounts have been reclassified to conform with their
1997 presentation.
Fair value of financial instruments
The carrying value of cash and cash equivalents, accounts receivable,
accounts payable and accrued expenses, approximates fair value due to the
relatively short maturity of these instruments.
New accounting pronouncement
In February 1997, the Financial Accounting Standards Board issued statement
of Financial Accounting Standards No. 128, 'Earnings per Share' ('FAS 128')
which requires presentation of basic earnings per share ('Basic EPS') and
diluted earnings per share ('Diluted EPS') by all entities that have publicly
traded common stock or potential common stock (options, warrants, convertible
securities or contingent stock arrangements). FAS 128 also requires presentation
of earnings per share by an entity that has made a filing or is in the process
of filing with a regulatory agency in preparation for the sale of those
securities in a public market. Basic EPS is computed by dividing income
available to common stockholders by the weighted-average number of common shares
outstanding during the period. Diluted EPS gives effect to all dilutive
potential common shares outstanding during the period. The computation of
Diluted EPS does not assume conversion, exercise or contingent exercise of
securities that would have an antidilutive effect on earnings. The statement is
effective for both interim and annual periods ending after December 15, 1997.
The effect on the Company's earnings per share resulting from the adoption of
FAS 128 in not expected to be significant.
3. INVENTORIES
Inventories at March 31, 1996 and 1997 are comprised of the following:
1996 1997
---------- ----------
Raw materials................. $1,459,773 $1,671,010
Work-in-process............... 429,785 421,863
Finished goods................ 68,655 418,086
---------- ----------
Total inventories...... $1,958,213 $2,510,959
---------- ----------
---------- ----------
4. EQUIPMENT
Equipment at March 31, 1996 and 1997 is comprised of the following:
1996 1997
--------- ----------
Production equipment.................... $ 333,171 $ 964,921
Computer and communications equipment... 235,468 411,270
Demonstration equipment................. 204,663 312,578
Leasehold improvements.................. 83,865 191,761
Other equipment......................... 65,368 201,900
--------- ----------
Total equipment.................. 922,535 2,082,430
Less--accumulated depreciation.......... (173,641) (437,902)
--------- ----------
Equipment, net................... $ 748,894 $1,644,528
--------- ----------
--------- ----------
At March 31, 1996 and 1997, production equipment includes approximately
$40,000 and $135,000, respectively, of equipment acquired under capital leases.
Accumulated depreciation related to such equipment approximated $3,000 and
$21,515 at March 31, 1996 and 1997, respectively.
F-9
<PAGE>
SCHICK TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
5. INVESTMENTS IN DEBT SECURITIES
Held-to-maturity securities at March 31, 1997 consist of short term U.S.
Treasury and government agency debt securities of approximately $2,313,000, on
an amortized cost basis, with maturity dates of less than one year. Available
for sale securities of $490,000, at March 31, 1997, consist of long term U.S.
government agency debt securities and are recorded at fair value. Available for
sale securities in the amount of $150,000 mature in 1999 and $340,000 of such
securities mature in 2007. The gross unrealized gains and losses by type of
security were insignificant.
6. SHORT-TERM DEBT AND NOTES PAYABLE
Short-term debt
In January 1996 and March 1996, the Company issued secured short-term
promissory notes to a third party. The notes, each in the principal amount of
$250,000, bore interest at a rate of 5.5% per annum. Principal and interest on
the notes were payable upon demand at any time subsequent to the first
anniversary of the issuance of each note. The proceeds of the notes were
restricted for use by the Company solely for the purpose of developing a bone
density measurement device. The Notes were secured by accounts receivable and
inventories of the Company in an amount equal to twice the principal amount of
the notes. In August of 1996 the aggregate principal of the notes, $500,000 plus
accrued but unpaid interest in the amount of $12,833 were consolidated into a
long term note payable pursuant to a secured term loan agreement with the third
party.
Secured note
Under the provisions of the secured term loan agreement the Company
received additional proceeds of $1,000,000 upon execution in August 1996, of the
loan agreement. The note bears interest at a rate of prime plus two percent,
subject to annual adjustment on the anniversary date of the note, and is due and
payable together with accrued but unpaid interest, upon the earlier of (a)
February 7, 1999, or (b) the declaration of the effectiveness of a registration
statement filed pursuant to the Securities Act of 1933 in connection with an
initial public offering of the Company's common stock. The note is subject to
full or partial mandatory prepayment in the event of a private placement or
placements of the Company's common stock in which the aggregate net proceeds (as
defined in the agreement) exceed $2,000,000. Such prepayment will be in an
amount equal to $250,000 plus 25% of the net proceeds which exceed $2,000,000.
The note is also subject to mandatory prepayment in any fiscal year in which net
income, as defined in the agreement, on a year to date basis exceeds $1,250,000.
The Company will be required to prepay an amount equal to 25% of the amount of
net income in excess of $1,250,000.
The proceeds of the note are restricted for use by the Company solely for
the purposes of developing, obtaining regulatory approval, conducting clinical
studies, establishing manufacturing operations and selling and marketing a bone
density measurement device. The note is secured by the accounts receivable and
inventories of the Company. As long as any amounts are outstanding under the
loan agreement the Company may not purchase or acquire any equity securities,
make loans, advances or capital contributions to any other entity, pay cash
dividends or purchase any shares of its common stock. The Company received a
waiver from the third party regarding the November 1996 loan to a related party
described in Note 13.
Upon issuance of a 510(k) registration for the bone density measurement
device by the United States Food and Drug Administration the Company will be
eligible to borrow an additional $500,000 under the secured term loan agreement.
The agreement also provides that the lender will reimburse the Company for fifty
percent (50%) of the costs incurred by the Company in performing certain
specified clinical studies associated with the device. As of March 31, 1997 the
Company had not incurred any costs which were eligible for reimbursement.
At March 31, 1997, the outstanding principal balance of the note was
$1,512,833 and accrued but unpaid interest on the note amounted to $101,654. The
Company believes the carrying value of the note at March 31, 1997 approximates
fair value due to its unique features and the terms currently available to the
Company for similar debt transactions.
F-10
<PAGE>
SCHICK TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
6. SHORT-TERM DEBT AND NOTES PAYABLE--(CONTINUED)
12.5% Notes
On various dates during 1996, the Company issued promissory notes (the
'12.5% Notes'), in the cumulative principal amount of $1,457,500, which bore
interest at a rate of 12.5% per annum and matured two years from the date of
issuance. Principal repayment was required upon maturity and interest was
payable by the Company on the six-month anniversary of the date of issuance and
monthly thereafter.
In February of 1996, the Company offered holders of the 12.5% Notes who are
Accredited Investors, as defined by Regulation D of the Securities and Exchange
Act of 1933, the opportunity to convert the principal amount of such notes into
shares of common stock, $0.01 par value, of the Company at conversion prices
ranging from approximately $1.52 to $1.79 per share. At March 31, 1996, holders
of the 12.5% Notes in the principal amount of $810,000, with accrued but unpaid
interest in the amount of $51,080 thereon, had converted such notes into 484,400
shares of common stock.
In July, 1996 the Company offered holders of the 12.5% Notes who are
Non-accredited Investors, the opportunity to convert the principal amount of
their notes into shares of the Company's common stock on the same terms and
conditions as the February offer to Accredited Investors. At March 31, 1997 all
of the holders of the 12.5% Notes had converted such notes into shares of common
stock. During 1997 holders of 12.5% Notes in the principal amount of $647,500,
with accrued but unpaid interest in the amount of $85,686 thereon converted such
notes into 376,446 shares of Common stock. Payment of accrued but unpaid
interest thereon was waived and such amounts have been contributed to paid-in
capital. As the Company's intention from the date of issuance of the 12.5% Notes
was to convert such notes to equity upon completion of the merger described in
Note 1, the notes have been treated as if they were convertible since issuance.
Interest expense on the 12.5% Notes amounted to $107,000 and $30,000 in 1996 and
1997, respectively.
7. INCOME TAXES
The Company has incurred losses since inception which have generated net
operating loss carryforwards of approximately $560,000 for federal and state
income tax purposes. These carryforwards are available to offset future taxable
income and expire in 2008 through 2012 for federal income tax purposes. At March
31, 1997, the Company also had research and development tax credits in the
amount of $122,000 which expire in 2002. These losses and credits are subject to
limitation on future years utilization should certain ownership changes occur.
The net operating loss carryforwards and temporary differences between
carrying amounts of assets and liabilities for financial reporting and income
tax purposes result in a noncurrent deferred tax benefit at March 31, 1996 and
1997 of $490,000 and $623,000, respectively. The Company's operating plans
anticipate taxable income in future periods; however, such plans make
significant assumptions which cannot be reasonably assured including regulatory
approval of the Company's new products and continued market acceptance of the
Company's products by customers. Therefore, in consideration of the Company's
accumulated losses and the uncertainty of its ability to utilize this deferred
tax benefit in the future, the Company has recorded a valuation allowance of an
equal amount on such dates to fully offset the deferred tax benefit amount.
Significant components of the noncurrent deferred tax asset at March 31,
1996 and 1997 are as follows:
<TABLE>
<CAPTION>
1996 1997
--------- ---------
<S> <C> <C>
Net operating loss carryforwards............................ $ 300,000 $ 241,000
Reserves and allowances for inventory, accounts receivable
and warranties............................................ 78,000 212,000
Other accrued expenses not currently deductible............. 112,000 48,000
Research and development tax credit carryforward............ -- 122,000
--------- ---------
Net deferred tax asset...................................... 490,000 623,000
Deferred tax asset valuation allowance...................... (490,000) (623,000)
--------- ---------
$ -- $ --
--------- ---------
--------- ---------
</TABLE>
F-11
<PAGE>
SCHICK TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
7. INCOME TAXES--(CONTINUED)
The financial statement income tax provision differs from income taxes
determined by applying the statutory Federal income tax rate to the financial
statement net loss for the years ended March 31, 1996 and 1997 as a result of
the following:
1996 1997
----- -----
Tax benefit at Federal statutory rate........ (34.0)% (34.0)%
State income tax benefit, net of
Federal tax charge......................... (9.0) (9.0)
Non-deductible expenses...................... 18.1 10.3
Research and development tax credit.......... -- (20.6)
Valuation allowance on deferred tax assets... 24.9 53.3
----- -----
-- --
----- -----
----- -----
8. CONCENTRATION OF RISKS AND CUSTOMER INFORMATION
Substantially all of the Company's sales are to domestic and foreign
dentists, distributors of dental supplies and equipment, and third-party
financing companies. Financial instruments which potentially subject the Company
to concentrations of credit risk are primarily accounts receivable, cash
equivalents and short and long-term investments. The Company generally does not
require collateral and the majority of its trade receivables are unsecured. The
Company is directly affected by the financial well-being of the dental industry;
however, the Company does not believe significant credit risk exists at March
31, 1997. The Company places its cash equivalents in short-term money market
instruments. Short-term and long-term investments consist of U.S. Treasury and
government agency debt obligations (see Note 5).
The Company currently relies on a single vendor to supply its primary raw
material, semiconductor wafer. Although there are a number of manufacturers
capable of supplying this material, which the Company believes could provide for
its semiconductor requirements on comparable terms, any abrupt change in the
supply flow could cause a delay in manufacturing and a possible loss of sales,
which would affect operating results adversely.
Approximately $735,000, $2,142,000 and $3,867,000 of the Company's sales in
1995, 1996 and 1997, respectively, were to foreign customers. The majority of
such foreign sales were to customers in Europe. During 1995, sales of $579,680
were to a distributor. During 1996, sales of $1,227,347 were to a second
distributor. In 1997, no customer accounted for 10% or more of sales.
9. COMMITMENTS AND CONTINGENCIES
Operating and capital leases
The Company leases its facilities under an operating lease agreement
expiring in February 2001. Rent expense for the years ended March 31, 1995, 1996
and 1997 was $38,000, $68,000 and $193,218 respectively. In addition, the
Company leases certain production equipment under capital leases expiring
through 2002.
F-12
<PAGE>
SCHICK TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
9. COMMITMENTS AND CONTINGENCIES--(CONTINUED)
Future minimum payments on a fiscal year basis under operating and capital
leases are as follows:
OPERATING CAPITAL
LEASES LEASES
--------- --------
1998.......................... $ 162,900 $ 38,426
1999.......................... 179,100 38,426
2000.......................... 190,100 38,426
2001.......................... 174,100 30,746
2002.......................... -- 1,609
Thereafter.................... -- --
--------- --------
Total minimum lease
payments............ $ 706,200 147,633
---------
---------
Less--Amounts
representing
interest............ 38,442
--------
Present value of future
minimum lease payments...... 109,191
Less--Current
maturities.......... (22,200)
--------
Total.................. $ 86,991
--------
--------
LITIGATION
During 1996, the Company was named as defendant in patent infringement
litigation commenced by a competitor in the United States and France. The
Company is vigorously defending itself against such allegations and believes the
claims to be without merit. The Company has filed a countersuit against the
competitor for infringement of a U.S. Patent which has been exclusively licensed
to the Company. The Company has obtained a formal opinion of intellectual
property counsel that its products do not infringe on the competitor's U.S.
patent. As these actions are in their preliminary stages, the Company is unable
to predict the ultimate outcome of these claims. The outcome, if unfavorable,
could have a material adverse effect on the financial position and results of
operations of the Company. No provision has been made for any potential losses
at March 31, 1996 and 1997.
During 1997, the Company was named as a defendant in patent litigation
involving a patent directed to a display system for digital dental radiographs.
The Company is vigorously defending itself against such allegations and believes
the claim to be without merit. The Company has obtained a formal opinion of
intellectual property counsel that its products do not infringe on the patent.
As this action is in its preliminary state, the Company is unable to predict the
ultimate outcome of this claim. The outcome, if unfavorable, could have a
material adverse affect on the financial position and results of operations of
the Company. No provision has been made for any potential loss at March 31,
1997.
10. STOCK OPTION PLAN, STOCK GRANTS AND DEFINED CONTRIBUTION PLAN
Stock option plan and stock grants
In April 1996 the Company implemented its 1996 Stock Option Plan (the
'Plan') whereby incentive and non-qualified options to purchase up to 470,400
shares of the Company's common stock may be granted to key employees, directors
and consultants. The exercise and vesting periods and the exercise price for
options granted under the Plan is determined by a committee of the Board of
Directors. The Plan stipulates that the exercise price of non-qualified options
granted under the Plan must have a exercise price equal to or exceeding 85% of
the fair market value of the Company's common stock as of the date of grant of
the option and no option may be exercisable after ten years from the date of
grant. The fair market value of the Company's common stock is determined by the
Board of Directors. Options granted under the plan are generally exercisable
immediately but vest over a period of four years.
During the year ended March 31, 1997, the Company granted options under the
Plan, to employees, to purchase 79,338 shares of its common stock, at an
exercise price of $7.14 per share. The options vest on a pro-
F-13
<PAGE>
SCHICK TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
10. STOCK OPTION PLAN, STOCK GRANTS AND DEFINED CONTRIBUTION PLAN--(CONTINUED)
rata basis on the first, second, third and fourth anniversaries of the date of
grant. There were no grants to consultants or directors during the year ended
March 31, 1997.
During fiscal 1996, prior to implementation of the Plan, an employee of the
Company was granted an option to purchase 56,000 shares of the Company's common
stock at $1.79 per share, determined by the Company's Board of Director's to be
the fair market value of the Company's common stock at the date of the option
grant. As of March 31, 1997, 28,000 shares are exercisable under such option.
The remaining options become exercisable in equal annual amounts on December 31,
1997 and 1998.
The Company applies Accounting Principles Board Opinion No. 25, 'Accounting
for Stock Issued to Employees,' and related interpretations in accounting for
its Plan and other stock-based compensation issued to employees and directors.
During the year ended March 31, 1996, the Company did not recognize compensation
expense for options granted to employees. During 1997, the Company has
recognized compensation expense in the amount of $13,457 for options granted to
employees. Had compensation cost for option grants to employees been determined
based upon the fair value at the grant date for awards under the Plan consistent
with the methodology prescribed under Statement of Financial Accounting
Standards No. 123, 'Accounting for Stock-Based Compensation,' ('FAS 123') the
Company's net loss in 1996 and 1997 would have been increased by approximately
$6,609 (less than $.01 per share) and $45,480 ($.01 per share), respectively.
The fair value of options granted to employees during 1996 and 1997 has
been determined on the date of the respective grant using the Black-Scholes
option-pricing model based on the following weighted average assumptions.
1996 1997
------- -------
Dividend yield............................. None None
Risk free interest rate on date of grant... 5.36% 6.27%
Forfeitures................................ None None
Expected life.............................. 5 years 5 years
The following table summarizes information regarding stock options for 1996
and 1997:
WEIGHTED AVERAGE
OPTIONS EXERCISE PRICE
------- ----------------
Options outstanding, March 31, 1995..... -- --
Option grants........................... 56,000 $ 1.79
------- ------
Options outstanding, March 31, 1996..... 56,000 1.79
Option grants........................... 79,338 7.14
Options forfeited....................... (4,385) 7.14
------- ------
Options outstanding, March 31, 1997..... 130,953 $ 4.85
------- ------
Options available for grant, March 31, 1997..... 395,447
Weighted average remaining contractual life..... 9 years
Options exercisable, March 31, 1997............. 102,953
Weighted average exercise price of
exercisable options, March 31, 1997........... $5.68
The Company also issued 1,445 shares of its common stock to an employee
during the year ended March 31, 1997 for services rendered by the employee to
the Company. The employee was immediately vested in the shares. The Board of
Directors of the Company has determined the fair market value of such shares to
be $8.16 per share. The Company recognized expense of $11,791 for the year ended
March 31, 1997 related to the grant.
During 1996 the Company issued 73,184 shares of its common stock to certain
employees, directors and consultants. The shares vested upon issuance and the
fair market value of such shares at the date of grant was
F-14
<PAGE>
SCHICK TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
10. STOCK OPTION PLAN, STOCK GRANTS AND DEFINED CONTRIBUTION PLAN--(CONTINUED)
determined by the Board of Director's to be $1.79 per share. The Company
recognized expense of $130,685 for the year ended March 31, 1996 related to the
stock grants.
Defined Contribution Plan
Effective October 1996, the Company implemented a defined contribution
savings plan, which qualifies under Section 401(k) of the Internal Revenue Code,
for employees meeting certain service requirements. Participants may contribute
up to 15% of their gross wages not to exceed, in any given year, a limitation
set by the Internal Revenue Service regulations. The plan provides for mandatory
matching contributions to be made by the Company to a maximum amount of 2.5% of
a plan participant's compensation. Company contributions to the plan amounted to
$38,096 in 1997.
11. PATENT LICENSE AGREEMENT
During the year ended March 31, 1996, the Company entered into a license
agreement with the owner of a U.S. Patent, which expired in July 1996, for a
period of one year commencing July 1, 1995. The Company was obligated to pay the
owner a royalty equal to 3% of the sales price of each licensed product, as
defined by the agreement, that is leased, sold or transferred to an unaffiliated
third party in the United States during the license period. The license provided
for a minimum royalty amount of $100,000, of which $73,333 and $26,667 have been
expensed in 1996 and 1997, respectively.
12. SUPPLEMENTAL CASH FLOW INFORMATION
Cash payments for interest amounted to $17,373, $17,366 and $56,223 in
1995, 1996 and 1997, respectively. There were no payments for income taxes in
1995 and 1996. In 1997, the Company paid $6,800 for income taxes.
During fiscal 1996 and 1997, the Company acquired $40,152 and $94,935,
respectively of production equipment under capital leases. No production
equipment was acquired by capital lease in 1995.
13. RELATED PARTIES
In July 1996, the Company loaned its President, who is a principal
stockholder, $32,200. Such loan bears interest at a rate of 8%, commencing
October 14, 1996, and is due and payable September 1, 1997. The loan along with
accrued but unpaid interest in the amount of $1,256, was repaid in April 1997.
In November 1996, the Company received an interest bearing demand note in
return for a loan of $200,000 to a related party in which the Company's Chief
Financial Officer is a principal stockholder. The loan, which bore interest at a
rate of 8.75% per annum, was repaid with accrued interest in the amount of
$4,135 in February 1997.
During 1996 the Company received interest bearing demand notes in return
for aggregate loans of $150,000 to a related party in which the Company's Chief
Financial Officer is a principal stockholder. Such loans, which bore interest at
a rate of 12% per annum, were repaid with accrued interest in the aggregate of
$1,794 as of March 31, 1996.
14. STOCKHOLDER'S EQUITY
During 1997, the Company completed a private offering of 520,315 units, as
defined in such offering, at a price per unit ranging from $7.86 to $8.93 based
on the quantity of units purchased. Each unit consists of one share of the
Company's common stock, $.01 par value, and a warrant to purchase one additional
share of the Company's common stock at a price per share equal to the purchase
price of the unit, on or before May 3, 1999. The offering provided net proceeds
of $4,311,800. In conjunction with the offering the Company issued 6,155 units,
as a placement fee, to certain individuals who assisted the Company in selling
the units. The fair value of such units, in the amount of $54,950, or $8.93 per
unit has been reflected as a reduction of paid in capital. At
F-15
<PAGE>
SCHICK TECHNOLOGIES, INC.
NOTES TO FINANCIAL STATEMENTS--(CONTINUED)
14. STOCKHOLDER'S EQUITY--(CONTINUED)
March 31, 1997 the Company has reserved 526,470 shares of its common stock for
issuance upon the exercise of the warrants.
During 1996, a 10% interest bearing convertible demand note, held by a
stockholder of the Company, in the principal amount of $50,000 was converted
into 28,000 shares of the Company's common stock. During 1996, a non-interest
bearing convertible loan in the principal amount of $150,000, held by a second
stockholder, was converted into 98,823 shares of common stock.
15. RESTRUCTURING AND RECAPITALIZATION
In connection with the Company's proposed initial public offering under the
Securities Act of 1933, as amended, the Company is restructuring. In April 1997,
Schick Technologies, Inc. ('Schick Delaware') and its wholly owned subsidiary,
STI Acquisition Corporation ('STI') were formed under the General Corporation
Law of the State of Delaware for the purpose of forming a holding company and
changing the state of incorporation of the Company. Prior to the closing of the
proposed IPO (pursuant to a merger agreement, which has been approved by the
Company's Board of Directors and is subject to ratification by holders of
two-thirds of the Company's outstanding shares of Common Stock, among the
Company, Schick Delaware and STI), Schick Delaware will issue 7,957,231 shares
of its common stock for all outstanding common stock of the Company. STI and the
Company will merge and the Company will be the survivor of the merger and become
a wholly-owned subsidiary of Schick Delaware. In connection with the
restructuring and merger, the holders of the Company's outstanding warrants and
options will convert such warrants and options to similar warrants and options
of Schick Delaware (based on the same ratio of exchange, 2.8 shares for 1 share,
applicable to the common stock exchange). Schick Delaware's articles of
incorporation also authorize 2,500,000 shares of preferred stock, $.01 par
value.
The 1996 Stock Option Plan of the Company will be amended by Schick
Delaware and the shares available for issuance pursuant to the Plan will be
adjusted to 470,400. Schick Delaware will also implement its 1997 Stock Option
Plan for Non-Employee Directors ('the Director Plan') whereby nonqualified
options to purchase up to 35,000 shares of the Company's common stock may be
granted to non-employee directors. Each option granted under the Director Plan
becomes exercisable on the second anniversary date of its grant and must have an
exercise price equal to the fair market value of the Company's common stock on
the date of grant.
All common shares, stock options, warrants and related per share data
reflected in the accompanying financial statements and notes thereto, have been
presented as if the recapitalization had occurred on April 1, 1994.
F-16
<PAGE>
[Graphics depicting the Company's manufacturing facilities].
[Caption: Schick Technologies, Inc.].
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
No dealer, salesperson or other person has been authorized to give any
information or to make any representation not contained in this Prospectus and,
if given or made, such information or representation must not be relied upon as
having been authorized by the Company or any Underwriter. This Prospectus does
not constitute an offer of any securities other than those 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 there has been no change in the
affairs of the Company since the date hereof or that the information contained
herein is correct as of any time subsequent to its date.
------------------
TABLE OF CONTENTS
PAGE
----
Additional Information........................................... 3
Prospectus Summary............................................... 4
Risk Factors..................................................... 7
The Company...................................................... 14
Use of Proceeds.................................................. 15
Dividend Policy.................................................. 15
Capitalization................................................... 16
Dilution......................................................... 17
Selected Financial Data.......................................... 18
Management's Discussion and Analysis of Financial Condition and
Results of Operations.......................................... 19
Business......................................................... 24
Management....................................................... 38
Certain Transactions............................................. 44
Principal Stockholders........................................... 44
Description of Capital Stock..................................... 45
Shares Eligible for Future Sale.................................. 49
Underwriting..................................................... 50
Legal Matters.................................................... 51
Experts.......................................................... 51
Index to Financial Statements.................................... F-1
------------------
Until , 1997 (25 days after the date of this Prospectus), all
dealers effecting transactions in the Common Stock, whether or not participating
in this distribution, may be required to deliver a Prospectus. This delivery
requirement is in addition to the obligation of dealers to deliver a Prospectus
when acting as Underwriters and with respect to their unsold allotments or
subscriptions.
SHARES
[LOGO]
SCHICK TECHNOLOGIES, INC.
COMMON STOCK
---------------------------
PROSPECTUS
, 1997
---------------------------
LEHMAN BROTHERS
J.P. MORGAN & CO.
PACIFIC GROWTH EQUITIES, INC.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses in connection with the
sale and distribution of the securities being registered, other than
underwriting discounts and commissions. All the amounts shown are estimated
except the Commission registration fee, the National Association of Securities
Dealers, Inc. (the 'NASD') filing fee and the Nasdaq National Market ('NNM')
listing fee.
Commission registration fee................................ $10,367.42
NASD filing fee............................................ 3,921.25
NNM listing application fee................................ 1,000.00
Printing and engraving expenses............................ *
Legal fees and expenses.................................... *
Accounting fees and expenses............................... *
Blue Sky fees and expenses (including legal fees).......... *
Transfer agent and registrar fees and expenses............. *
Miscellaneous..............................................
----------
Total............................................... $ 635,000
----------
----------
- ------------------
* To be supplied by amendment.
All expenses of such issuance and distribution will be paid by the registrant.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the DGCL provides as follows:
'(a) A corporation shall have power to indemnify any person 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) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) A corporation shall have the power to indemnify any person 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 the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
II-1
<PAGE>
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because the person has
met the applicable standard of conduct set forth in subsections (a) and (b) of
this section. Such determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the corporation as
authorized in this section. Such expenses (including attorneys' fees) incurred
by other employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to 'the corporation' shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
(i) For purposes of this section, references to 'other enterprises' shall
include employee benefit plans; references to 'fines' shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to 'serving at the request of the corporation' shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner 'not
opposed to the best interests of the corporation' as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).'
II-2
<PAGE>
Section 102(b)(7) of the DGCL provides as follows:
'(b) In addition to the matters required to be set forth in the certificate
of incorporation by subsection (a) of this section, the certificate of
incorporation may also contain any or all of the following matters:
(7) A provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, provided that such provision shall not
eliminate or limit the liability of a director: (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under section 174 of this title; or (iv) for any
transaction from which the director derived an improper personal benefit. No
such provision shall eliminate or limit the liability of a director for any act
or omission occurring prior to the date when such provision becomes effective.
All references in this paragraph to a director shall also be deemed to refer (x)
to a member of the governing body of a corporation which is not authorized to
issue capital stock, and (y) to such other person or persons, if any, who,
pursuant to a provision of the certificate of incorporation in accordance with
Section ~141(a) of this title, exercise or perform any of the powers or duties
otherwise conferred or imposed upon the board of directors by this title.'
The Company maintains a director's and officer's liability insurance policy
which indemnifies directors and officers for certain losses arising from claims
by reason of a wrongful act, as defined therein, under certain circumstances.
In addition, in response to this Item 14, the following information is
incorporated by reference: Articles Seventh and Eighth of the Certificate of
Incorporation of the registrant incorporated by reference as Exhibit 3.1 to this
Registration Statement; and Section 5 of Article V of the By-Laws of the
registrant incorporated by reference as Exhibit 3.2 to this Registration
Statement.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
The following sets forth information as to all securities issued by the
registrant during the past three years which were not registered under the
Securities Act.
A. The following transactions were exempt under either Section 4(2) or
Section 3(a)(9) of the Securities Act:
In February 1995, the Company sold 143,780 shares of Common Stock for
$225,000.
In December 1995, notes payable in the aggregate amount of $200,000 were
converted into 126,824 shares of Common Stock.
In March 1996, notes payable in the aggregate principal amount of $810,000,
plus accrued interest of $51,080 thereon, were converted into 484,400 shares of
Common Stock.
In April through July 1996, notes payable in the aggregate principal amount
of $647,500, plus accrued interest of $85,490 thereon, were converted into
376,446 shares of Common Stock.
From May through August 1996, the Company sold 520,315 units, each unit
consisting of one share of Common Stock and one warrant to purchase one share of
Common Stock for $4,311,800.
No underwriters were engaged in connection with any of the foregoing
securities transactions.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------------------------------------------------------------------
1.1** -- Form of Underwriting Agreement
3.1** -- Certificate of Incorporation of Schick Technologies, Inc.
3.2** -- By-Laws of Schick Technologies, Inc.
4.1** -- Form of Common Stock certificate of Schick Technologies, Inc.
4.2** -- Form of Warrant
II-3
<PAGE>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------------------------------------------------------------------
5.1** -- Opinion of Kelley Drye & Warren LLP (including the consent of such
firm) as to the validity of the securities being registered
10.1** -- Schick Technologies, Inc. 1996 Employee Stock Option Plan+
10.2** -- Schick Technologies, Inc. Directors Stock Option Plan+
10.3* -- Form of Non-Disclosure, Non-Solicitation, Non-Competition and
Inventions Agreement between Schick Technologies, Inc. and each
Named Executive of Schick Technologies, Inc.
10.4* -- Secured Term Loan Agreement dated August 7, 1996 between Schick
Technologies, Inc. and Merck & Co., Inc. (the 'Agreement').
10.5*** -- Service and License Agreement between Photobit, LLC and Schick
Technologies, Inc. dated as of June 24, 1996 amending the Agreement.
10.6 -- Letter Agreement between Schick Technologies, Inc. and Merck & Co.,
Inc., dated May 12, 1996
11.1* -- Computation of Earnings Per Share
22.1** -- List of subsidiaries of Schick Technologies, Inc.
23.1** -- Consent of Kelley Drye & Warren LLP (included in Exhibit 5.1)
23.2* -- Consent of Price Waterhouse LLP
24.1* -- Powers of Attorney (included in the signature page)
- ------------------
* Filed herewith
** To be filed by amendment.
*** Filed herewith. Confidential treatment requested as to certain portions.
+ Management contract or compensatory plan or arrangement.
(b) Consolidated Financial Statement Schedules
Schedule II--Valuation and Qualifying Accounts
All other schedules are omitted because they are inapplicable or the
requested information is shown in the consolidated financial statements or
related notes.
ITEM 17. UNDERTAKINGS
The registrant hereby undertakes to provide to the Underwriters at the
closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to provisions described in Item 14 above, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The registrant hereby undertakes (1) that for purposes of determining any
liability under the Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in reliance upon Rule
430A and contained in the form of prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared effective;
and (2) that for the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEW YORK,
STATE OF NEW YORK, ON THE THIRTEENTH DAY OF MAY, 1997.
SCHICK TECHNOLOGIES, INC.
By: /s/ David B. Schick
David B. Schick
Chairman of the Board,
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints David B. Schick, David B. Spector and Zvi
N. Raskin, and each of them individually, as his true and lawful agent, proxy
and attorneys-in-fact, with full power of substitution and resubstitution, for
him and in his name, place and stead, in any and all capacities, to (i) act on,
sign and file with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, any and all amendments (including post-effective
amendments) to this Registration Statement and any and all schedules and
exhibits thereto, (ii) act on, sign and file with the Securities and Exchange
Commission any registration statement (and any and all schedules and exhibits
thereto) relating to the offering described in this Registration Statement (as
such offering may be increased or decreased or the terms thereof may be modified
from time to time at any time) that is to be effective upon filing pursuant to
Rule 462 under the Securities Act of 1933, as amended, (iii) act on, sign and
file with the Securities and Exchange Commission any exhibits to this
Registration Statement or any such registration statement or amendments
(including post-effective amendments), (iv) act on, sign and file such
certificates, instruments, agreements and other documents as may be necessary or
appropriate in connection therewith, (v) act on and file any supplement to any
prospectus included in this Registration Statement or any such registration
statement or and all applications and other documents in connection with any
such registration statement or amendments and (vi) take any and all actions
which may be necessary or appropriate in connection therewith or with such
offering, granting unto such agents, proxies and attorneys-in-fact, and each of
them individually, full power and authority to do and perform each and every act
and thing necessary or appropriate in connection therewith or with such
offering, as fully for all intents and purposes as he might or could do in
person, hereby approving, ratifying and confirming all that such agents, proxies
and attorneys-in-fact, any of them or any of his or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURES TITLE DATE
- -------------------------------- -------------------------------- ------------
/s/ David B. Schick Chairman of the Board, Chief May 13, 1997
David B. Schick Executive Officer, President and
Director (Principal Executive
Officer)
/s/ David B. Spector Chief Financial Officer May 13, 1997
David B. Spector (Principal Financial and
Accounting Officer)
II-5
<PAGE>
SIGNATURES TITLE DATE
- -------------------------------- -------------------------------- ------------
/s/ Mark I. Bane Director May 13, 1997
Mark I. Bane
/s/ Allen Schick, Ph.D. Director May 13, 1997
Allen Schick, Ph.D.
/s/ Euval S. Barrekette, Ph.D. Director May 13, 1997
Euval S. Barrekette, Ph.D.
/s/ Jonathan Singer Director May 13, 1997
Jonathan Singer
/s/ Howard Wasserman, D.D.S. Director May 13, 1997
Howard Wasserman, D.D.S.
II-6
<PAGE>
Schedule II
Schick Technologies, Inc.
Valuation and Qualifying Accounts
<TABLE>
<CAPTION>
Additions
-------------------------------------
Balance at Charged to Charged to
Beginning Costs and Other
of Period Expenses Accounts
----------------- ----------------- -----------------
<S> <C> <C> <C>
ALLOWANCE FOR DOUBTFUL ACCOUNTS:
For the year ended March 31, 1995 - $ 20,000 -
For the year ended March 31, 1996 $ 20,000 15,000 $ 27,782
For the year ended March 31, 1997 35,000 15,000 18,933
RESERVE FOR SLOW MOVING INVENTORY
For the year ended March 31, 1995 - - -
For the year ended March 31, 1996 - - -
For the year ended March 31, 1997 - 113,714 -
VALUATION ALLOWANCE-DEFERRED TAX
ASSET
For the year ended March 31, 1995 455,000 - 10,000
For the year ended March 31, 1996 465,000 - 25,000
For the year ended March 31, 1997 490,000 - 133,000
PROVISION FOR WARRANTY OBLIGATIONS
For the year ended March 31, 1995 - 52,000 -
For the year ended March 31, 1996 52,000 78,055 -
For the year ended March 31, 1997 130,055 199,371 -
<CAPTION>
Write-off of Balance at
Uncollectible End
Accounts of Period
----------------- ------------------
<S> <C> <C>
ALLOWANCE FOR DOUBTFUL ACCOUNTS:
For the year ended March 31, 1995 - $ 20,000
For the year ended March 31, 1996 $ 27,782 35,000
For the year ended March 31, 1997 18,933 50,000
RESERVE FOR SLOW MOVING INVENTORY
For the year ended March 31, 1995 - -
For the year ended March 31, 1996 - -
For the year ended March 31, 1997 - 113,714
VALUATION ALLOWANCE-DEFERRED TAX
ASSET
For the year ended March 31, 1995 - 465,000
For the year ended March 31, 1996 - 490,000
For the year ended March 31, 1997 - 623,000
PROVISION FOR WARRANTY OBLIGATIONS
For the year ended March 31, 1995 - 52,000
For the year ended March 31, 1996 - 130,055
For the year ended March 31, 1997 - 329,426
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
- ------- ------------------------------------------------------------ ----------
1.1** -- Form of Underwriting Agreement
3.1** -- Certificate of Incorporation of Schick Technologies, Inc.
3.2** -- By-Laws of Schick Technologies, Inc.
4.1** -- Form of Common Stock certificate of Schick Technologies,
Inc.
4.2** -- Form of Warrant
5.1** -- Opinion of Kelley Drye & Warren LLP (including the
consent of such firm) as to the validity of the
securities being registered
10.1** -- Schick Technologies, Inc. 1996 Employee Stock Option
Plan+
10.2** -- Schick Technologies, Inc. Directors Stock Option Plan+
10.3* -- Form of Non-Disclosure, Non-Solicitation, Non-Competition
and Inventions Agreement between Schick Technologies,
Inc. and each Named Executive of Schick Technologies,
Inc.
10.4* -- Secured Term Loan Agreement dated August 7, 1996 between
Schick Technologies, Inc. and Merck & Co., Inc. (the
'Agreement').
10.5*** -- Service and License Agreement between Photobit, LLC and
Schick Technologies, Inc. dated as of June 24, 1996
amending the Agreement.
10.6 -- Letter Agreement between Schick Technologies, Inc. and
Merck & Co., Inc., dated May 12, 1996
11.1* -- Computation of Earnings Per Share
22.1** -- List of subsidiaries of Schick Technologies, Inc.
23.1** -- Consent of Kelley Drye & Warren LLP (included in Exhibit
5.1)
23.2* -- Consent of Price Waterhouse LLP
24.1* -- Powers of Attorney (included in the signature page)
- ------------------
* Filed herewith
** To be filed by amendment.
*** Filed herewith. Confidential treatment requested as to certain portions.
+ Management contract or compensatory plan or arrangement.
II-1
<PAGE>
----------------------------------------------------
Employee's Last Name First Name
SCHICK TECHNOLOGIES, INC.
NON-DISCLOSURE, NON-SOLICITATION, NON-COMPETITION
and INVENTIONS AGREEMENT
In consideration of my employment with Schick Technologies,
Inc. (the "Company") or, if I already am an employee of the Company, in
consideration of my continued employment with the Company, and other good and
valuable consideration, receipt of which is hereby acknowledged, I hereby agree
as follows:
1. NON-DISCLOSURE
a. I recognize that the Company possesses and will continue to
possess information that has been created, discovered, developed, or otherwise
become known to the Company and/or in which property rights have been assigned
or otherwise conveyed to the Company, which information has commercial value in
the business in which the Company is or may become engaged. All of the
aforementioned information is hereinafter called "Proprietary Information."
b. By way of illustration, but not limitation, Proprietary
Information includes trade secrets, processes, structures, formulas, data and
know-how, improvements, inventions, product concepts, techniques, marketing
plans, strategies, forecasts, customer lists and information about the Company's
employees and/or consultants.
c. At all times, both during my employment by the Company and
after its termination, I will keep in confidence and trust all Proprietary
Information, and I will not use or disclose any Proprietary Information or
anything directly relating to it without the prior written consent of the
President of the Company, except as may be necessary in the ordinary course of
performing my duties as an employee of the Company and only for the benefit of
the Company.
2. NON-SOLICITATION
During the term of my employment by the Company, and for
twelve months thereafter, I shall not, directly or indirectly, without the prior
written consent of the Company: (a) solicit or induce any employee of the
Company to leave the employ of the Company; or (b) hire for any purpose any
employee of the Company, or any former employee within six months of the
termination of said employee's employment with the Company.
3. NON-COMPETITION
During the period of my employment by the Company and for a
period of twelve months following the termination of my employment, I will not,
directly or indirectly, engage or become interested in any way (whether as an
owner, stockholder, partner, lender, investor, director, officer,
<PAGE>
employee, consultant or otherwise) in any activity, business or enterprise,
located within the geographical area of the United States or Canada, that is
competitive with any significant part of the business conducted by the Company
or as contemplated to be conducted by the Company, without the prior consent of
the President of the Company.
4. INVENTIONS
a. Disclosure of Inventions. I will promptly disclose to the
Company, or any persons designated by it, all improvements, inventions, designs,
ideas, works of authorship, copyrightable works, discoveries, trademarks,
copyrights, trade secrets, formulas, processes, techniques, know-how, and data
(collectively, "Inventions"), whether or not patentable, made or conceived or
reduced to practice or learned by me, either alone or jointly with others,
during the period of my employment (whether or not during normal working hours)
which:
(i) are related to or useful in the business of the
Company; or
(ii) result from tasks assigned me by the Company; or
(iii) result from use of premises or equipment owned,
leased, or contracted for by the Company.
b. Assignment of and Assistance on Inventions. I hereby assign
to the Company any rights I may have or acquire in all Inventions and agree that
all Inventions shall be the sole property of the Company and its assigns, and
the Company and its assigns shall be the sole owner of all patents, copyrights
and other rights in connection therewith. I further agree to assist the Company
in every way (but at the Company's expense) to obtain and from time to time
enforce patents, copyrights or other rights on said Inventions in any and all
countries.
c. Prior Inventions. All improvements, inventions, designs,
ideas, works of authorship, copyrightable works, discoveries, trademarks,
copyrights, trade secrets, formulas, processes, techniques, know-how and data
relevant to the subject matter of my employment by the Company which have been
made or conceived or first reduced to practice by me alone or jointly with
others prior to my engagement by the Company shall be deemed "Inventions" for
the purposes of this Agreement except as set forth on Exhibit A hereto.
5. MISCELLANEOUS PROVISIONS
a. I recognize, understand, agree and acknowledge that the
Company has a legitimate and necessary interest in protecting its goodwill and
Proprietary Information. I further affirm, represent, and acknowledge that in
the event of my termination of employment with the Company, my experience and
capabilities are such that the enforcement of this Agreement will not prevent me
from obtaining employment in another line of business different from that
carried on by the Company and permitted under this Agreement. I further affirm,
represent and acknowledge that I have received good and valuable consideration
for entering into this Agreement.
b. Remedies for Breach. I agree that any breach of this
Agreement by me would cause irreparable damage to the Company and that, in the
event of such breach, the Company shall have, in addition to any and all
remedies at law, the right to an injunction, specific performance or other
equitable relief to prevent or redress the violation of my obligations
hereunder.
2.
<PAGE>
c. Separability. If any provision hereof shall be declared
unenforceable for any reason, such unenforceability shall not affect the
enforceability of the remaining provisions of this Agreement. Further, such
provision shall be reformed and construed to the extent permitted by law so that
it would be valid, legal and enforceable to the maximum extent possible.
d. Term of Agreement. This Agreement shall be effective
as of the date set forth below and shall survive the termination of my
employment by the Company, regardless of the manner of such termination.
e. Applicable Law. Any dispute arising under or related in
any manner to this Agreement or my employment by the Company shall in all
respects be governed by, adjudicated, construed and enforced in accordance
with the laws of the State of New York.
f. Jurisdiction and Venue. I irrevocably and unconditionally
submit to the non-exclusive jurisdiction of any United States federal or New
York state court sitting in New York City in any action or proceeding relating
in any manner to this Agreement or to my employment by the Company, including
the termination of such employment. Further, I irrevocably and unconditionally
agree that all claims relating in any manner to this Agreement or to my
employment by the Company, including the termination of such employment, may be
heard and determined in any such court and waive any objection I may now or
hereafter have as to venue of any such action or proceeding brought in such
court or the fact that such court is an inconvenient forum.
g. Attorney's Fees. The prevailing party in any action
arising under or related in any manner to this Agreement or to my employment by
the Company shall recover from the other party or parties thereto reasonable
attorney's fees, costs and expenses.
Dated:_____________
By:___________________________________
Print Name:____________________________
ACCEPTED AND AGREED TO:
Schick Technologies, Inc.
By:___________________________________
Name:
Title:
3.
<PAGE>
EXHIBIT A
Schick Technologies, Inc.
3100 47th Avenue
Long Island City, NY 11101
Gentlemen:
The following is a complete list of all inventions or improvements
relevant to the subject matter of my employment by you (the "Company") which
have been made or conceived or first reduced to practice by me alone or jointly
with others prior to my engagement by the Company which shall not be deemed to
be "Inventions" for purposes of the foregoing Non-Disclosure and Inventions
Agreement:
__________ No inventions or improvements
__________ See Below
________________________________________
________________________________________
________________________________________
________________________________________
__________ Additional sheets attached
Very truly yours,
________________
4.
<PAGE>
SECURED TERM LOAN AGREEMENT
This Secured Term Loan Agreement is made this 7th day of August, 1996, by and
between Merck & Co., Inc., a New Jersey corporation, having an address at
Sumneytown Pike, West Point, PA 19486-0004 ("Merck") and Schick Technologies,
Inc., a New York corporation, having an address at 31-00 47th Avenue, Long
Island City, NY 11101 ("Schick").
Schick is currently engaged in the manufacturing and marketing of computed
digital radiography dental devices which employ Charged Couple Device technology
and is developing a similar dental device which employs Active Pixel technology.
In connection with such business, Schick has developed an application of these
technologies which may be useful in developing a device for measuring bone
density.
Schick is interested in developing such device for measuring bone density, but
requires financial assistance in order to do so. Merck is interested in
facilitating the development of such device, and has agreed to provide such
financial assistance to Schick on a secured term loan basis, subject to the
terms and conditions contained in this Agreement.
NOW THEREFORE, it is agreed as follows:
1. Definitions. The following capitalized terms shall have the indicated
meanings when used in this Agreement:
(a) "Affiliate" shall mean (i) any corporation, partnership or other
business entity fifty (50%) percent or more of the voting stock or
interests of which is owned directly or indirectly by a party; or (ii)
any corporation, partnership or other business entity which directly
or indirectly owns fifty (50%) percent or more of the voting stock or
interests of a party; or (iii) any corporation, partnership or other
business entity fifty (50%) percent or more of the voting stock or
interests of which is owned directly or indirectly by a corporation,
partnership or other business entity described in Section 1 (a)(i) or
(ii)
(b) "Agreement" shall mean this Secured Term Loan Agreement between Merck
and Schick and all Exhibits and Schedules hereto.
(c) "Amended and Restated Security Agreement" shall mean the Amended and
Restated Security Agreement attached as Exhibit A.
<PAGE>
(d) "Ancillary Agreements" shall mean the Amended and Restated Security
Agreement, the Secured Term Notes and any other certificates or
agreements executed and delivered pursuant to this Agreement.
(e) "Calendar Quarter" shall mean the three calendar month periods
constituting fiscal quarters under the accounting year used by Schick
in preparing its financial statements. Currently, such three month
periods begin on April 1, July 1, October 1 and January 1.
(f) "Device" shall mean any device for measuring human bone density which
is developed by Schick and which employs the Technology.
(g) "Default Rate" shall mean the lower of (ii) twenty four (24%) percent
per annum or (ii) the maximum non-usurious interest rate permitted
under applicable law.
(h) "Event of Default" is defined in Section 8.
(i) "FDA" shall mean the U.S. Food and Drug Administration.
(j) "First Secured Term Loan" is defined in Section 2(a).
(k) "First Secured Term Note" shall mean the secured term note in the form
attached hereto as Exhibit B to be executed and delivered by Schick at
the Initial Closing to evidence the First Secured Term Loan.
(l) "Initial Closing" shall mean the date, time and place for the
execution and delivery of this Agreement and the making of the First
Secured Term Loan in accordance with Section 5(a).
(m) "Interest Rate" shall mean two (2) percentage points above the Prime
Rate as specified in the "Money Rate" section of the Wall Street
Journal ("Prime Rate") on the date of issue of the applicable Secured
Term Note, which interest rate shall fluctuate with the change, if
any, in the Prime Rate as listed in the Wall Street Journal on each
anniversary date of the issuance of such Secured Term Note, effective
as of each such anniversary date. If no publication of the Prime Rate
is made on any such anniversary date, then the foregoing annual
adjustment shall be made by reference to the next following date on
which such publication of the Prime Rate is made, but shall
nonetheless be effective as of such anniversary date.
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(n) "January Note" shall mean the $250,000 Promissory Note made
by Schick to Merck dated January 31, 1996.
(o) "March Note" shall mean the $250,000 Promissory Note made
by Schick to Merck dated March 13, 1996.
(p) "Maturity Date" shall mean, for each Secured Term Loan, the
thirty (3O) month anniversary of the date of issuance of the related
Secured Term Note.
(q) "1933 Act" shall mean the Securities Act of 1933, as amended.
(r) "Obligations" shall mean all principal, interest and other amounts
owing from Schick to Merck under this Agreement and the Ancillary
Agreements.
(s) "Proprietary Rights" is defined in Section 4(h).
(t) "Qualifying Instrument" shall mean (i) any Qualifying Security, (ii)
any options, warrants or other rights convertible into or exchangeable
for any Qualifying Security, (iii) any instruments or other securities
issued by Schick, excluding debt instruments issued in connection with
Commercial Loans, or (iv) any options, warrants or other rights to
acquire instruments or other securities issued by Schick, excluding
debt instruments issued in connection with Commercial Loans. For the
purposes of the foregoing, Commercial Loans shall mean any loan or
similar financial accommodation for borrowed money made by a federally
or state chartered bank, savings and loan, trust company or similar
commercial financial institution.
(u) "Qualifying Securities" shall mean shares of any class or series of
the common or preferred stock of Schick.
(v) "Register" shall mean to effect a registration by preparing and filing
a registration statement or similar document in compliance with the
1933 Act, and the declaration or ordering of the effectiveness of such
registration statement or document.
(w) "Related Assets" shall mean (i) all Proprietary Rights associated with
the Technology (as it relates to bone densitometry) and the Device,
(ii) all raw materials, work-in-process, finished inventory,
equipment, materials and other items purchased or produced with the
proceeds of the January Note, the March Note or the Secured Term
Loans, (iii) all books, records and other written or recorded
materials relating to the Technology (as it relates to bone
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densitometry) and the Device, and (iv) all other rights or
assets in the control or possession of Schick which are primarily
related to the development of the Technology (as it relates to bone
densitometry) and the manufacturing and marketing of the Device, in
each case whether now existing or hereafter acquired or developed.
(x) "SEC" shall mean the U. S. Securities and Exchange Commission.
(y) "Second Secured Term Loan" is defined in Section 2(b).
(z) "Second Secured Term Note" shall mean the secured term note in the
form attached as Exhibit B to be executed and delivered by Schick at
the Subsequent Closing to evidence the Second Secured Term Loan.
(aa) "Secured Term Loans" shall mean the First Secured Term Loan and the
Second Secured Term Loan; "Secured Term Loan" shall refer to either
the First Secured Term Loan or the Second Secured Term Loan.
(bb) "Secured Term Notes" shall mean the First Secured Term Note and the
Second Secured Term Note; "Secured Term Note" shall refer to either
the First Secured Term Note or the Second Secured Term Note.
(cc) "Subsequent Closing" shall mean the date, time and place for the
making of the Second Secured Term Loan in accordance with Section
5(a).
(dd) "Technology" shall mean all technology associated with the computed
digital radiograph device developed by Schick for use in bone
densitometry, including both (i) the Charged Couple Device technology
licensed to and developed by Schick, and (ii) the Active Pixel
technology licensed to and developed by Schick, in all cases as now
existing or hereafter acquired or developed.
2. Secured Term Loans. Subject to all of the terms and conditions
contained in this Agreement, Merck hereby agrees to make the Secured Term Loans
to Schick in the aggregate principal amount of Two Million Twelve Thousand Eight
Hundred Thirty-Three and 33/100 Dollars ($2,012,833.33) as follows:
(a) First Secured Term Loan. A secured term loan (the "First Secured Term
Loan") shall be funded by Merck at the Initial Closing as follows:
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<PAGE>
(i) Merck shall advance to Schick the sum of One Million
($1,000,000) Dollars by wire transfer of immediately available
funds into the account specified in Exhibit C;
(ii) Merck shall consolidate the Two Hundred Fifty-Seven Thousand
Two Hundred Eighteen and 75/100 Dollars ($257,218.75) of
principal and interest obligations owing under the January Note
as of the Initial Closing into the principal amount of the
First Secured Term Loan; and
(iii) Merck shall consolidate the Two Hundred Fifty-Five Thousand Six
Hundred Fourteen and 58/100 Dollars ($255,614.58) of principal
and interest obligations owing under the March Note as of the
Initial Closing into the principal amount of the First Secured
Term Loan.
(b) Second Secured Term Loan. A secured term loan (the "Second Secured
Term Loan") shall be funded at the Subsequent Closing by Merck
advancing to Schick the sum of Five Hundred Thousand ($500,000)
Dollars by wire transfer of immediately available funds into the
account specified in Exhibit C;
(c) Interest. Interest on the unpaid principal balance of each Secured
Term Loan shall accrue at the applicable Interest Rate for such
Secured Term Loan, as in effect from time to time, and shall be due
and payable at the same time as the principal amount of such Secured
Term Loan as provided in Section 2(d). Interest shall be calculated on
the basis of a 360 day year and shall be simple interest.
(d) Maturity Date. The entire unpaid principal balance of each Secured
Term Loan, together with all accrued interest thereon, shall be due
and payable on the Maturity Date for such Secured Term Loan. The
Secured Term Loans are subject to mandatory and permissive prepayment
as provided in Section 7 of this Agreement.
(e) Certain Deliveries. The First Secured Term Loan shall be evidenced by
the First Secured Term Note to be executed and delivered by Schick to
Merck at the Initial Closing, appropriately completed in exchange for
the funds specified in Section 2(a)(i) and the original January Note
and March Note marked "paid in full". The Second Secured Term Loan
shall be evidenced by the Second Secured Term Note to be executed and
delivered by Schick to Merck at the Subsequent Closing, appropriately
completed, in exchange for the funds specified in Section 2(b).
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<PAGE>
3. Collateral. As collateral security for the timely repayment of all
Obligations, and the timely performance of each and every covenant, agreement
and condition described in this Agreement and the Ancillary Agreements to be
performed by Schick, Schick grants to Merck the rights, powers and interests
described in the Amended and Restated Security. At the Initial Closing, Schick
shall execute and deliver to Merck the Amended and Restated Security Agreement,
together with UCC-3 amendments to financing statements and such other
documentation as Merck may reasonably request to effectuate its rights, powers
and interests under the Amended and Restated Security Agreement.
4 Representations and Warrants of Schick. Schick hereby represents and
warrants to Merck as follows:
(a) Due Organization. Schick is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite corporate power and authority to
carry out its business as currently conducted or contemplated to be
conducted, and to enter into and perform its obligations under this
Agreement and the Ancillary Agreements. Schick is duly qualified to
transact business as a foreign corporation and is in good standing
under the laws of each jurisdiction in which the conduct of its
business or ownership or lease of its properties require such
qualification.
(b) Capitalization. The authorized capitalized stock of Schick consists of
10,000,000 shares of Common Stock, $.01 par value, of which 2,530,481
shares are currently issued and outstanding (the "Common Stock"). All
issued and outstanding shares of Common Stock have been duly
authorized and validly issued and are fully paid and non-assessable.
Except as set forth on Schedule 4(b), there are no outstanding
options, warrants, rights (including conversional or preemptive
rights) or agreements for the purchase or acquisition from Schick of
any shares of its capital stock.
(c) Subsidiaries. Schick does not own or control, directly or indirectly,
any interest in any other corporation, association, joint venture or
other business entity.
(d) Authorization. This Agreement and each of the Ancillary Agreements has
been duly authorized, executed and delivered by Schick and constitutes
a valid, legal and binding obligation of Schick, enforceable against
Schick accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of
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general application relating to or affecting the enforcement of
creditor's rights and the application of equitable principles in any
action, at law or in equity. All corporate action on the part of
Schick necessary for the consummation of the transactions
contemplated hereby and by the Ancillary Agreements has been taken.
(e) Certificate of Incorporation and By-laws. Attached as Schedule 4(e)
are true and complete copies of the Certificate of Incorporation and
By-laws, including all amendments thereto, of Schick. The minute books
and stock ledgers of Schick accurately set forth the ownership of all
of the issued and outstanding shares of the capital stock of Schick
and contain the records of all actions legally required to be
contained therein.
(f) Governmental Consents. Schick possesses all required governmental
licenses, permits, approvals, consents and orders for the operation of
its business as currently conducted and as contemplated to be
conducted. Schick is in compliance with all laws, regulations, orders,
judgments and decrees applicable to it or to the operation of its
business. The execution, delivery and performance of this Agreement by
Schick and the consummation of the transactions contemplated hereby
will not result in any violation of any such laws, regulations,
orders, judgments or decrees as applicable to Schick. No consent,
approval, order or authorization of, or registration, qualification,
designation or declaration or filing with, any Federal, State or local
government authority on the part of Schick is required in connection
with the execution of this Agreement or the Ancillary Agreements or
the consummation of the transactions contemplated thereby.
(g) Litigation. Except as set forth on Schedule 4(g), there is no action,
suit, proceeding or, to Schick's knowledge, investigation pending or
currently threatened against Schick or any or its assets in any court
or tribunal or before any governmental agency or instrumentality, and
Schick does not know of any valid basis for any such action, suit,
proceeding or investigation. Schick is not a party to or subject to
the provisions of any writ, order, injunction, judgment or decree of
any court, tribunal or governmental agency or instrumentality.
(h) Proprietary Rights. Except as is set forth on Schedule 4(h), the
conduct by Schick of its current and contemplated business does not
violate or conflict with, and has not been claimed to violate or
conflict with, the patents, trademarks, service marks, trade names,
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<PAGE>
copyrights, trade secrets, informational proprietary rights or
processes (collectively "Proprietary Rights") of others, and Schick
possesses all Proprietary Rights necessary for the conduct of such
current and contemplated business. For the purposes of the foregoing,
"contemplated business" shall include, but not be limited to, the
design, development, manufacture and sale of Devices and dental
devices which employ the Active Pixel technology. A list of all
Proprietary Rights owned by or licensed to Schick is set forth in
Schedule 4(h). Except as set forth on Schedule 4(h), Schick has not
granted any option or license of any kind relating to its Proprietary
Rights nor is Schick bound by or party to any option or license of any
kind with respect its Proprietary Rights.
(i) Compliance with Organizational Documents. Schick is not in violation
of any provisions of its Certificate of Incorporation or By-laws, and
the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not result
in any such violation.
(j) Employee Benefit Plans. Except as set forth in Schedule 4(j), no plan,
program, policy or arrangement providing cash or non-cash compensation
or benefits to employees (including, without limitation, any "employee
benefit plan" within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") (each a
"Benefit Plan") is now, or previously has been, adopted, sponsored,
maintained, contributed to or required to be contributed to by Schick,
and Schick has no liability, contingent or otherwise, to or with
respect to any Benefit Plan. A true and complete copy of each Benefit
Plan is set forth on Schedule 4(j) attached hereto.
(k) Employment and Labor Relations. Schick is not bound by or subject to
(and none of its assets or properties are bound by or subject to) any
employment contract, commitment or arrangement with any employee,
express or implied, which provides a binding obligation for (i)
continued employment of such employee by Schick, or (ii) any
termination, severance or other consideration payable by Schick to
such employee upon termination of employment. Schick has no collective
bargaining agreements with any labor union, and no labor union has
requested or, to the knowledge of Schick, has sought to represent
any of its employees, representatives, or agents. Schick has not
experienced any material labor difficulty during the past 2 years and,
except as set forth in Schedule 4(k), there is no pending or, to the
best of Schick's knowledge, threatened dispute, controversy,
proceeding
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<PAGE>
or charge by or with any employee or former employee of Schick. To the
best of Schick's knowledge, none of the employees of Schick is
obligated or under contract, agreement or commitment of any nature
with a third party, or subject to any judgment, decree or order of any
court or administrative agency that would interfere with the use of
such employee's best efforts to promote the interest of Schick or that
would conflict with the business of Schick as currently conducted or
contemplated to be conducted.
(l) Title to Properties; Lien Priority. Schick has good and marketable
title to and lawfully possesses all of the personal property used in
its businesses, free and clear of all liens, security interests,
encumbrances or rights of third parties, except for liens in favor of
Merck and the rights of equipment lessors under equipment leases. The
lien on the assets of Schick created under the Amended and Restated
Security Agreement constitutes a first priority security interest,
which will be duly perfected upon the filing of UCC-3 amendments to
financing statements in accordance with the Amended and Restated
Security Agreement.
(m) Real Property. Schick has no legal or equitable ownership interest, or
any contract to acquire any legal or equitable ownership interest, in
any real property. Except as set forth in Schedule 4(m), Schick does
not lease any real property. A true and complete copy of any lease set
forth on Schedule 4(m) is attached hereto. All leases referred to in
Schedule 4(m) are in full force and effect, and Schick's leasehold
interest thereunder is free and clear of all mortgages, assignments,
pledges, liens, charges, encumbrances or rights of third parties.
Neither Schick nor, to the best of Schick's knowledge, any other party
to the leases set forth on Schedule 4(m) is in material breach of any
of the terms, conditions or provisions thereof or is in default
thereunder; the execution, delivery and performance of this Agreement
and the Ancillary Agreements and the consummation of the transactions
contemplated hereby will not result in any such breach or default.
(n) Material Contracts. Except as set forth on Schedule 4(n), Schick is
not a party to or bound by, and none of its properties are subject to,
any material agreement, contract or other commitment, whether oral or
written, express or implied. Each agreement, contract and commitment
referred to in Schedule 4(n) is in full force and effect. Neither
Schick nor, to the best of Schick's knowledge, any other party to any
such agreement, contract or commitment is in material breach of any of
the terms, conditions or provisions thereof or is in default
thereunder; the execution, delivery and performance of this
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<PAGE>
Agreement and the consummation of the transactions contemplated hereby
will not result in any such breach or default. A true and complete
copy of each contract referred to in Schedule 4(n) attached hereto.
Insurance. Set forth on Schedule 4(o) is a complete list of all
insurance policies which Schick maintains with respect to its
businesses, properties or employees. Such policies are in full force
and effect and (i) in the case of casualty insurance, provides
coverage in an amount at least equal to the full replacement value of
Schick's assets, and (ii) in the case of liability insurance, is in an
amount not less than $5,000,000 per occurrence.
(p) Financial Statements. Schick has furnished Merck with the Balance
Sheets of Schick dated March 31, 1995 and December 31, 1995, and the
related Statements of Operation, Statements of Cash Flows and
Supplementary Schedules for the periods then ended, all audited by
Richard A. Eisner & Company; Schick has also furnished Merck with the
Balance Sheet of Schick dated March 31, 1996, and the related
Statement of Operation, Statement of Cash Flows and Supplementary
Schedules for the period then ended, all audited by Price Waterhouse
(all of such financial statements from March 31, 1995 to March 31,
1996 are collectively the "Financial Statements"). The Financial
Statements have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
indicated. Each of the Balance Sheets included within the Financial
Statements fairly represents the financial condition of Schick as of
the dates thereof and reflects all claims against and all debts and
liabilities of Schick, fixed or contingent, at the dates thereof. Each
of the Statements of Operation and Statements of Cash Flow included in
the Financial Statements fairly presents the results of the operations
of Schick and the changes in its cash flows, respectively, for the
periods covered thereby. Since March 31, 1996, there has been no
material adverse change in the assets or liabilities, or in the
business or condition, financial or otherwise, or the results of
operations or prospects of Schick.
(q) Tax Returns and Payments. All required tax returns and reports of
Schick have been duly filed and all taxes, assessments, fees and other
government charges upon Schick or any of its assets, income or
franchises which are due and payable have been paid. All such tax
returns and reports are true and complete in every material respect
and reflect accurately all liability for taxes of Schick for the
periods indicated. The charges, accruals and reserves on the
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<PAGE>
books of Schick in respect of federal and state taxes for all
fiscal periods to date are adequate and there are no unpaid
assessments for additional federal and state taxes with respect to
Schick for any fiscal period. No examination of any tax return of
Schick is currently in progress.
(r) Relationship with Vendors and Customers. Since December 31, 1995
Schick has not suffered any material deterioration in its business
relationship with any of its customary vendors or customers, and
Schick does not have any reason to anticipate any such material
deterioration.
(s) Interests in Vendors or Customers. No director, officer, employee or
agent of Schick has any direct or indirect financial interest in, or
is a director, officer or employee of, any corporation, firm,
association or other entity which is a customer or vendor of Schick.
(t) Disclosure. Neither this Agreement nor any other documents,
correspondence, statements or certificates made or delivered by Schick
in connection herewith contains any untrue statement of a material
fact or omits to state a material fact necessary to make the
statements herein or therein contained not misleading.
5. Closings.
(a) Initial and Subsequent Closing. The Initial Closing shall occur on
August 7th, 1996, subject the satisfaction of all terms and conditions
contained in this Agreement which are to be satisfied on or before the
date of the Initial Closing. The Subsequent Closing shall occur on a
mutually agreed date within 15 business days after the satisfaction of
all terms and conditions contained in this Agreement which are to be
satisfied on or before the date of the Subsequent Closing. Both the
Initial Closing and the Subsequent Closing shall occur at the offices
of Merck located at Sumneytown Pike, West Point, Pennsylvania.
(b) Initial Closinq Deliveries. At the Initial Closing, Schick shall make
the following deliveries to Merck:
(i) The First Secured Term Note, duly executed by Schick;
(ii) The Amended and Restated Security Agreement, duly executed by
Schick;
(iii)UCC-3 Amendments to Financing Statements, duly executed by
Schick and in form and substance satisfactory to Merck;
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<PAGE>
(iv) An opinion of Schick's counsel, in form and substance reasonably
satisfactory to Merck, as to the matters set forth in Sections
4(a), (d), (f) (last sentence), (g) and (i) of this Agreement and
Section 8(v) of the Amended and Restated Security Agreement;
(v) Certified resolutions authorizing Schick to execute, deliver and
perform its obligations under this Agreement and the Ancillary
Agreements;
(vi) A certificate from the Chief Executive Officer of Schick dated as
of the Initial Closing date, certifying that the conditions
specified in Section 5(d) have been satisfied; and
(vii) The insurance certificates required by Section 6(i).
(c) Subsequent Closinq Deliveries. At the Subsequent Closing, Schick shall
make the following deliveries to Merck:
(i) The Second Secured Term Note, duly executed by Schick;
(ii) A certificate from the Chief Executive Officer of Schick dated as
of the Subsequent Closing date, certifying that the conditions
specified in Section 5(e) have been satisfied; and
(iii)A copy of the 510(k) registration for the Device issued by the
FDA pursuant to which the Device is authorized to be marketed for
measuring bone mineral density.
(d) Certain Conditions--Initial Closing. The obligation of Merck to
advance the First Secured Term Loan is subject to the following
additional conditions:
(i) All representations and warranties of Schick contained in the
Agreement and the Ancillary Agreements shall be true as of the
Initial Closing Date.
(ii) Schick shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement and the
Ancillary Agreements that are required to be performed or
complied with by Schick on or before the Initial Closing date.
(iii)There shall have occurred no Event of Default under the January
Note, the March Note or the Security Agreement between Merck and
Schick dated January 31, 1996 (as amended by an amendment dated
March 13, 1996), or any
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<PAGE>
event which, with the giving of notice, the passage of time, or
both, would constitute any such Event of Default under such
documents.
(iv) Schick shall have retained the consulting firm of C.L. McIntosh &
Associates, Inc., or with Merck's prior written consent, another
firm reasonably satisfactory to Merck, for the purposes of
obtaining advice regarding (A) the filing of and obtaining a
510(k) registration with the FDA for the Device and (B)
compliance with current Good Manufacturing Practices with respect
to implementing a manufacturing capability for the manufacture of
Devices.
(v) Schick shall have entered into a definitive written license
agreement with Photobit, Inc. for use of the Active Pixel
technology in the fields of dental radiograph, bone
densitometry, and osteoporosis diagnosis, and a true and complete
copy of such agreement shall have been delivered to Merck.
(vi) Schick shall provide to Merck written evidence of the closing of
a Schick common stock private placement offering pursuant to
which Schick has raised not less than Two Million Five Hundred
Thousand ($2,500,000) Dollars.
(vii)Schick shall have withdrawn its trademark application relating to
the Device which has been filed with the U.S. Patent and
Trademark Office under the name FOSAMETER, and shall certify that
no similar applications have been filed in other jurisdictions.
(e) Certain Conditions--Subsequent Closing. The obligation of Merck to
advance the Second Secured Term Loan is subject to the following
additional conditions:
(i) The representations and warranties contained in Sections 4(a),
(c), (d), (f), (h), (i), (l), (o), (p), (q), (r) and (t) shall be
true on and as of such Subsequent Closing date with the same
effect as though such representations and warranties had been
made on such Subsequent Closing date.
(ii) Schick shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement and the
Ancillary Agreements that are required to be performed or
complied with by Schick on or before the Subsequent Closing date.
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<PAGE>
(iii)There shall have occurred no Event of Default under this
Agreement or any of the Ancillary Agreements or any event which,
with the giving of notice, the passage of time, or both, would
constitute any such Event of Default under such documents;
(iv) The studies referred to in Section 10(a)(i)-(iii) shall have been
completed;
(v) Schick shall have obtained a 510(k) registration for the Device
from the FDA; and
(vi) The Subsequent Closing shall occur prior to June 30, 1997.
6. Covenants of Schick. For so long as any of the Obligations are
outstanding, Schick agrees as follows:
(a) Delivery of Financial Statements. Schick shall deliver to Merck:
(i) as soon as practicable, but in any event within 90 days after the
end of each fiscal year of Schick, (A) an Operating Statement for
such fiscal year, (B) a Statement of Cash Flows for such fiscal
year and (C) a Balance Sheet as of the end of such year. The
foregoing year end financial reports shall be prepared in
reasonable detail, in accordance with generally accepted
accounting principles consistently applied and shall be certified
by Price Waterhouse or another independent certified public
accountant selected by Schick and reasonably acceptable to Merck.
(ii) as soon as practicable, but in any event within 60 days after the
end of each of the first three Calendar Quarters of each fiscal
year of Schick, (A) and Operating Statement for such Calendar
Quarter and on a fiscal year to date basis, (B) a Statement of
Cash Flows for such Calendar Quarter and on a fiscal year to date
basis, and (C) a Balance Sheet as of the end of such Calendar
Quarter. The foregoing financial reports shall be prepared in
reasonable detail, in accordance with generally accepted
accounting principles consistently applied and shall have the
same level of review (e.g. compiled, review or certified) as is
performed by or on behalf of Schick for such quarterly statements
at that time.
(iii)as soon as practicable, but in any event within 30 days after the
end of each month (A) an unaudited Operating Statement for such
month and on fiscal year to date basis, (B) an
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unaudited Statement of Cash Flows for such month and on a fiscal
year to date basis, and (C) an unaudited Balance Sheet as of the
end of such month. The foregoing financial reports shall be
prepared in reasonable detail, in accordance with generally
accepted accounting principles consistently applied.
(iv) as soon as practicable, but in any event within 5 days of the
filing or release thereof, copies of each filing made by Schick
or any Afffiliate with the SEC and each communication from Schick
to its debtholders or shareholders generally.
(b) Inspection. Schick shall permit Merck to visit and inspect its
properties and facilities, to examine its books and records and to
discuss its affairs, finances, and accounts with each of its officers,
employees and accountants, all at such reasonable times as may be
requested.
(c) cGMP Compliance; Regulatory Correspondence. Schick shall at all times
comply with cGMP's in connection with the conduct of its operations.
Schick shall immediately forward to Merck any Notice of Observation,
Warning Letter, or other communications of any type received from the
FDA or other federal or state regulatory agency or authority.
(d) Environmental. Schick has not and shall not at any time generate,
store, treat, discharge, refine, handle, release or dispose of any
Hazardous Materials except for standard maintenance uses of small
quantities of cleaning agents in accordance with all applicable laws
and free from statutory or common law liability, including but not
limited to, liability for property, personal or natural resource
damages. For the purposes of the foregoing, "Hazardous Materials"
shall mean any substances the presence of which requires investigation
or remediation or which otherwise may result in liability under any
current or future federal, state, or local statute, regulation,
ordinance, order, action, policy or common law.
(e) ERISA. If Schick shall hereafter adopt a Benefit Plan, such Benefit
Plan shall be established and maintained in accordance with its terms
and in compliance with all applicable laws, statutes, orders, rules
and regulations, including, but not limited to, ERISA and the Code.
(f) Comply with Laws. Schick shall comply with the requirements of all
applicable laws, rules, regulations and orders of any governmental
authority relating to its corporate existence and the conduct of its
business. Schick shall maintain all required governmental licenses,
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<PAGE>
permits, approvals, consents or orders for the operation of its businesses
as then being conducted or contemplated to be conducted.
(g) Investments, etc. Schick shall not, directly or indirectly, (i) purchase or
otherwise acquire or own any stock or other securities of any other entity,
other than (A) immaterial investments (i.e. investments in amounts of less
than $30,000) and (B) investments in investment grade interest bearing
securities; (ii) make or permit to be outstanding any loan or advance
(other than advances to employees for travel expenses and similar ordinary
course expenditures) or capital contributions to any other entity; or (iii)
guarantee or become or be liable with respect to, directly or indirectly,
any indebtedness, obligations, liability, or dividend of any other entity.
(h) Payments and Distributions. Schick shall not, directly or indirectly: (i)
declare, order or pay any dividend or other distribution on account of any
shares of any class of its stock except a dividend payable solely in shares
of its own capital stock, or (ii) order or make any redemption, retirement,
purchase or other acquisition of any shares of any class of its stock or of
any options (including warrants or similar right) to purchase such stock,
except to the extent that such consideration consists of shares of its own
capital stock.
(i) Insurance of Property. Schick will maintain with financially sound and
reputable insurers (i) casualty insurance with respect to its personal
property and fixtures in an amount at least equal to the full replacement
value thereof and (ii) commercial liability insurance in an amount not less
than $5,000,000 per occurrence. Schick will deliver to Merck certificates
of insurance evidencing the existence and continuation of such insurance
coverage at the Initial Closing, which certificates shall name Merck as an
additional named insured and loss payee.
(j) Taxes. Schick will pay or cause to be paid all taxes, assessments, fees and
other governmental charges levied upon any of its properties or assets or
in respect of its franchises, business, income or profits before the same
become delinquent, except to the extent such charges are then being
contested in good faith and by appropriate proceedings promptly initiated
and diligently conducted and a reserve for which has been established in
the full amount of the claimed charge.
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<PAGE>
(k) Use of proceeds; Reports. All proceeds from the Secured Term Loan
shall be used for the sole purposes of (i) developing the Technology (as it
pertains to bone densitometry) and the Device, (ii) obtaining FDA approval
of the Device, (iii) conducting clinical and other related studies with
respect the Device, (iv) scaling up manufacturing operations for the
production of Devices, and (v) the introduction, sale and marketing of
Devices. Schick shall deliver to Merck as soon as possible, but in any
event within 30 days after the end of each month, an accounting setting
forth in reasonable detail all amounts expended in such month in connection
with the activities referred to in clauses (i)-(v), which accounting shall
include a ratable allocation of such amounts expended between the Secured
Term Loans and amounts supplied by Schick, and which allocation shall have
at least fifty (50%) percent of such amounts expended allocated to amounts
supplied by Schick. For the purposes of the foregoing, allocation of Schick
overhead shall be made in accordance with Exhibit D
(l) Study Results, etc. Schick shall, within 5 days after receipt, provide to
Merck the full results of any (i) trials, studies or other clinical data
obtained with respect to the Device or the Technology (as it pertains to
densitometry), (ii) regulatory inspections of its facilities by FDA or
other regulatory authorities, or (iii) consultant reports concerning the
Device or any of its manufacturing operations pertaining thereto. Schick
shall consult with Merck regarding the results of any such trial, study,
data, inspections or report.
(m) Notice to Merck. Schick shall immediately notify Merck of the occurrence of
any event which constitutes an Event of Default or which would, with the
giving of notice, the passage of time, or both, constitute an Event of
Default.
(n) [deleted].
(o) Retention of David Schick. Schick shall at all times retain David Schick as
its Chief Executive Officer and as a full time employee, and shall cause
David Schick to devote such efforts as are required for the design,
development, manufacturing and marketing of the Device in accordance with
the development plan attached as Exhibit E.
(p) Continued Retention of C.L. McIntosh. Schick shall continue to retain the
consulting firm of C.L. McIntosh & Associates, or with
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<PAGE>
Merck's prior written consent, another firm reasonably satisfactory to Merck,
for the purposes set forth in Section 5(d)(iv).
(q) Use of CCD Technology. Schick shall not employ the CCD technology in the
Devices manufactured by it for sale or commercial use.
(r) Trademarks. Schick will not refile a trademark or service mark application
for the Device using the name or mark "FOSAMETER" or file a trademark or
service mark application or adopt a trademark or service mark which uses
the phrase "FOSA" or any other name or mark similar to the trademarks of
Merck or its Affliates.
(s) Commitment of Capital. In addition to the Secured Term Loans, Schick agrees
to commit such additional capital as may be required to accomplish the
purposes specified in Section 6(k)(i)-(v) in accordance with the timing
expressed in the development plan.
(t) Further Assurances. Schick shall execute such additional documentation as
Merck may reasonably request to establish, perfect, assure and/or maintain
Merck's rights and interests under this Agreement and the Ancillary
Agreements.
7. Prepayment.
(a) Mandatory Prepayment. The Secured Term Notes are subject to full or partial
mandatory prepayment as follows:
(i) If Schick or an Afffiliate shall Register any Qualifying Securities
under the 1933 Act in connection with the public offering of such
Qualifying Securities, Schick shall make an immediate prepayment on
the Obligations in an amount equal to the Net Proceeds (as hereinafter
defined) of such public offering;
(ii) If Schick or an Afffiliate shall issue Qualifying Instruments
resulting in Net Proceeds equal or exceeding $2,000,000 (individually
or in the aggregate) pursuant to one or more offerings occurring after
the date of this Agreement, which offering or offerings are not
required to be Registered, Schick shall make an immediate prepayment
on the Obligations in an amount equal to $250,000 (a one time payment
due upon exceeding the $2,000,000 threshold) plus 25% of the Net
Proceeds received in such offering(s) which exceed $2,000,000.
Notwithstanding the foregoing, any Qualifying Instrument issued by
Schick in connection with the private
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<PAGE>
placement referred to in Section 5(d)(vi) shall be excluded from the
foregoing calculation.
(iii)In the event that Schick individually, any Schick Affliate
individually, or Schick and its Affliates on a consolidated basis
(collectively the "Schick Group") shall have Augmented Net Income (as
hereafter defined) at the end of any Calendar Quarter in excess of
$1,250,000 on a fiscal year to date basis in any fiscal year of
Schick, then Schick shall make an immediate prepayment on the
Obligations in an amount equal to 25% of the difference between the
amount of the fiscal year to date Augmented Net Income at the end of
such Calendar Quarter and $1,250,000. In the event that at the end of
any subsequent Calendar Quarter in such fiscal year, the Schick Group
shall have additional Augmented Net Income, Schick shall make an
immediate payment to Merck of 25% of the difference between the
Augmented Net Income on a fiscal year to date basis as of the end of
such Calendar Quarter and the Augmented Net Income at the end of the
last Calendar Quarter in such fiscal year with respect to which a
prepayment under this Section 7(a)(iii) has been made. For the
purposes of the foregoing "Augmented Net Income" shall mean net income
plus depreciation, amortization, and other non-cash items that are
deducted from gross income in determining net income in Schick's and
its Affiliates' respective financial statements. It is acknowledged by
the parties that Schick's current fiscal year is April 1 to March 31;
in the event that Schick shall change its fiscal year, the parties
shall negotiate in good faith for an adjustment in the provisions of
this Section 7(a)(iii) as they apply to any resulting short fiscal
year, it being the intention of the parties that the provisions of
this Section 7(a)(iii) are to apply, in each case, to a full 12 month
period.
For the purposes of Section 7(a)(i) and (ii), "Net Proceeds" shall mean gross
proceeds less reasonable underwriting fees, brokerage fees, attorneys fees,
listing fees and other similar expenses customarily incurred in similar
transactions.
Written notice of the occurrence of either of the events in Section 7(a)(i)-(ii)
shall be given to Merck no later than the date of the occurrence of such event;
written notice of the occurrence of the events in Section 7(a)(iii) shall be
given to Merck no later than 60 days after the close of the relevant Calendar
Quarter.
(b) Optional Prepayment. The Secured Term Loans are subject to full or
partial prepayment by Schick at its option at any time, and
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without penalty or premium. Written notice of any optional prepayment
shall be given to Merck not less 15 days before the date fixed for
repayment, and shall specify the amount to be prepaid.
(c) Partial Payment. The amount of any partial prepayment of the Secured
Term Loans shall be allocated first to all amounts owing thereunder
other than principal and interest, second to interest thereon, and
third to the principal amount thereof; in each case further allocation
within each such category between the First Secured Term Note and the
Second Secured Term Note shall be made in such fashion as Merck shall
determine.
8. Default.
(a) Events of Default. Each of the following events shall constitute an
event of default under the Secured Term Loans (each an "Event of
Default"):
(i) any failure to repay all Obligations under either Secured Term
Loan at the Maturity Date;
(ii) any failure to make a prepayment on the Obligations under
either Secured Term Loan in accordance with Section 7(a) as and
when required;
(iii) any failure to make a payment required hereunder or under the
Ancillary Agreements when due, other than a payment referred to
in Section 8(a)(i) or (ii), provided that if such failure is
curable in its entirety within 10 days and no cure period is
otherwise afforded under this Agreement or the Ancillary
Agreements, then Schick shall be permitted a 10 day cure period
from the occurrence of such failure;
(iv) any of the representations or warranties made by Schick
hereunder or under the Ancillary Agreements shall be untrue
when made or deemed made;
(v) Schick shall fail to perform or observe any covenant, term or
condition of this Agreement or the Ancillary Agreements, other
than a payment referred to in Section 8(a)(i),(ii) or (iii),
provided that if such failure is curable in its entirety within
10 days and no cure period therefor is otherwise afforded under
this Agreement or the Ancillary Agreements, then Schick shall
be permitted a 10 day cure period from the occurrence of such
failure;
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<PAGE>
(vi) the occurrence of any Event of Default under the Amended and
Restated Security Agreement or either of the Secured Term Notes
(as such terms are defined therein);
(vii) any final non-appealable judgment amount exceeding $50,000
shall be entered against Schick, which shall remain
undischarged or unpaid for a period of 60 days;
(viii) any default by Schick on any indebtedness or debt obligations
to third parties (excluding trade payables and other accrued
current liabilities arising in the ordinary course of business)
in an amount exceeding $50,000 such that the holder of such
indebtedness or debt obligation is entitled to declare same due
and payable prior to the scheduled maturity date;
(ix) Any default by Schick on payment of trade payables or other
accrued current liabilities arising in the ordinary course of
business, in an amount exceeding $75,000 individually or
$150,000 in the aggregate, such that the party or parties
entitled to payment thereunder have declared the same
immediately due and payable;
(x) any warrant of attachment or for distraint relating to the
nonpayment of taxes or any notice of tax lien shall be issued
relating to or encumbering any of the assets of Schick that is
not, within 15 days of entry, discharged or stayed or bonded,
to the satisfaction of Merck;
(xi) Schick shall transfer, or enter an agreement to transfer
(whether by sale, merger, or otherwise) (i) all or
substantially all of its assets, or (ii) any substantial
portion of the Related Assets; provided however, that a
transfer of the Related Assets to a wholly owned subsidiary
shall not be deemed an Event of Default if, prior to such
transfer, Schick shall have delivered to Merck (x) a written
guaranty of such subsidiary, in form and substance reasonably
satisfactory to Merck, pursuant to which such subsidiary
guarantees the full payment of all Obligations, and the full
performance of all covenants an agreements of Schick under this
Agreement and the Ancillary Agreements, in each case as and
when due, and (y) a security agreement and UCC-1 financing
statements, in form and substance reasonably satisfactory to
Merck, pursuant to which such subsidiary grants to Merck a
first priority security interest in all inventory and accounts
receivable of such subsidiary, and all
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proceeds and products thereof, and (z) such other documents
and instruments as Merck may reasonably request;
(xii) the dissolution or liquidation of Schick;
(xiii) the cessation of normal business operations by Schick for a
period exceeding ten (10) business days;
(xiv) Any restraining order, injunction or other decree shall be
issued or entered and remain in effect for sixty (60) days
which materially and adversely impacts the ability of Schick to
make, have made, use or sell Devices (A) in the United States,
Canada, Germany, France, Italy, Japan or the United Kingdom or
(B) in any other country where gross sales of Devices in the
preceding twelve month period (or portion thereof) exceeded
$250,000;
(xv) Schick shall file a voluntary petition in bankruptcy or
insolvency, or shall be adjudicated as bankrupt or insolvent,
or shall file any petition or answer seeking any
reorganization, arrangement, composition, adjustment,
liquidation or similar relief under the present or any future
federal bankruptcy code or law or any other present or
applicable federal, state or statute or law relating to relief
of debtors, or shall make an assignment for the benefit of
creditors or shall seek or consent to or acquiesce in the
appointment of a trustee, receiver or liquidator for all or any
part of its assets; or
(xvi) any case, proceeding or other action against Schick shall be
commenced seeking to have an order for relief entered against
it as debtor or seeking a reorganization, arrangement,
adjustment or liquidation of its affairs under any code or law
related to bankruptcy, insolvency, reorganization or relief of
debtors or seeking appointment of a receiver, trustee,
custodian or similar official for Schick or for all or any
substantial part of its assets and such case, proceeding, or
action (A) results in the entry for any order of relief or (B)
remains undismissed for a period of 60 days.
(xvii) any termination of the license agreement with Photobit, Inc,
unless prior to such termination, Schick shall have created,
acquired or licensed a replacement technology reasonably
satisfactory to Merck.
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(b) Remedies.
(i) Upon the occurrence of a Event of Default, Merck shall have the
right and remedy to:
(A) Declare all Obligations immediately due and payable, which
amount shall thereafter bear interest at the Default Rate;
(B) Commence an action at law, in equity or by other appropriate
proceeding to enforce specific performance of any term hereof
or for an injunction against violation for any term hereof;
(C) Perform any duties or obligations on Schick's part to be
performed hereunder or under the Ancillary Agreements and add
any amounts expended in so doing to the Obligations due under
the Secured Term Loans with interest at the Default Rate;
(D) Exercise any rights and remedies available under the Amended
and Restated Security Agreement or either of the Secured Term
Notes; and
(E) Exercise any rights and remedies available to creditors under
applicable law.
(c) Fees and Expenses. Schick agrees to pay to Merck upon demand all fees
and expenses incurred in successfully enforcing this Agreement or any
of the Ancillary Agreements, including reasonable attorneys fees and
expenses, plus interest at the Default Rate.
(d) Remedies Cumulative; Direct Recourse. All remedies of Merck under this
Agreement and the Ancillary Agreements are cumulative and may, to the
extent permitted by law, be exercised concurrently or separately and
the exercise of one remedy shall not be deemed to preclude the
exercise of any other remedy. Schick agrees that, upon the occurrence
of an Event of Default, Merck may institute suit to collect the
Obligations directly against Schick, without first foreclosing upon or
liquidating any collateral under the Amended and Restated Security
Agreement. No failure on the part of Merck to exercise and no delay in
exercising any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by Merck of any
right or remedy preclude any other or further exercise thereof, or the
same or any other right or remedy by Merck.
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<PAGE>
9. Indemnification.
(a) Schick Obligation. Schick agrees to indemnify, defend and hold
harmless Merck and its Affiliates and their respective directors,
officers, employees and agents from and against all claims, actions,
damages, losses, liabilities, costs and expenses (including, without
limitation, reasonable expenses of investigation and attorneys fees)
arising out of:
(i) any failure to pay all Obligations hereunder when due;
(ii) any breach by Schick of a representation or warranty made by it
in this Agreement or any Ancillary Agreement;
(iii) any material failure by Schick to perform or observe any
covenant or agreement to be observed or performed by it under
this Agreement or the Ancillary Agreements;
(iv) any personal injury or property damage relating to the
operation of Schick's business or use of its products,
including but not limited to, the development, testing,
manufacturing, marketing, sale, use or misuse of the Device;
(v) any claim for inducing patent infringement, to the extent based
upon Schick's manufacture, use, sale, offers to sell or
importation of the Device; and
(vi) the enforcement by Merck of its rights under this Agreement or
the Ancillary Agreements.
(b) Procedure. Promptly after receipt by Merck of notice of a claim
requiring indemnification hereunder, Merck will, if a claim in
respect thereof is to be made against an Schick under this
Section 9, deliver to the Schick a written notice of the
commencement thereof and Schick shall have the right to
participate in and to assume the defense thereof with counsel
mutually satisfactory to the parties. Merck shall have the
right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of the Merck, unless (i)
the employment of such counsel has been specifically authorized
in writing by Schick, (ii) Schick has failed to assume the
defense of such claim and employ counsel, or (iii) the named
parties to any such action (including any impleaded parties)
include both the Merck and the Schick, and Merck shall have
been advised by its counsel that there may be one or more legal
defenses available to it which are different from or additional
to those available to the Schick (in which case Schick shall
not have
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the right to assume the defense of such action on behalf of
Merck). Schick shall not be liable under Section 9(a) for any
settlement affected without its consent, which consent shall
not unreasonably be withheld. Merck shall make available during
normal business hours all employees and records with relevant
information as Schick may reasonably request in connection with
the defense or investigation of any matter subject to
indemnification hereunder.
10. Other Obligations.
(a) Protocol Development. Merck will develop and propose to Schick a
protocol for performing (i) an in vivo clinical study to investigate
"raw data" correlation between radiographic absorptiometry ("RA") and
the Device for measuring phalange bone density, (ii) an in vivo
clinical study to establish a normative database for use in connection
with the Device, and (iii) a cadaver study to measure precision and
accuracy of the Device, and "raw data" correlation between RA and the
Device, in each case as it pertains to measurement of phalange bone
density. Merck agrees that it will deliver to Schick the protocols
referred to in clauses (i)-(iii) on or before September 30, 1996,
provided that if Merck shall fail to make such deliveries by that
date, the June 30, 1997 date referred to in Sections 5(e)(vi) and
10(c) shall be extended one day for each day that such protocols are
so delayed. Merck shall make good faith efforts in the performance of
its obligations under this Section 10(a), but shall not be responsible
for outcomes, implementation, scope, methodology or design
deficiencies.
(b) Partial Funding of Development and Clinical Work. Merck agrees to
provide the following funding:
(i) Payment of fees and expenses due to C.L. McIntosh & Associates in
connection with the work referred to in Sections 5(d)(iv), up to
a maximum of twenty thousand ($20,000) dollars;
(ii) Payment of fifty (50%) percent of the fees and expenses in
connection with the in vivo correlative study and normative
database study referred to in Section 10(a)(i) and (ii).
Schick understands and agrees that the amounts referred to in Section 10(b)(i)
may not constitute all fees and expenses required to be paid to C.L. McIntosh &
Associates in connection with the work referred to in Sections 5(d)(iv); Schick
also acknowledges and agrees that all fees and expenses referred to in Section
10(a)(iii) shall be the responsibility of Schick. Further, Schick acknowledges
that Merck has no obligation to fund any other studies or expenses in connection
with
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the Device. Schick agrees that C.L. McIntosh & Associates is an independent
contractor and not an agent of Merck, and that Merck shall have no
responsibility or liability for the services performed by C.L. McIntosh &
Associates.
(c) Marketing. Assuming FDA approval for marketing the Device is obtained
on or prior to June 30, 1997, Merck agrees to discuss with
Schick mutually acceptable marketing initiatives for the Device, as
the parties deem appropriate, and which are consistent with
the objectives and practices of both Merck and The Bone Measurement
Institute, an Affiliate of Merck, as then in effect in the field of
bone densitometry. Each of Merck and Schick shall be free to pursue
marketing initiatives with other parties, and neither Merck nor Schick
shall be obligated to offer or to accept any specific marketing
activity.
(d) Schick Obligations Not Affected. Schick agrees that its obligation to
repay all Obligations as and when due is independent of the agreements
of the parties under this Section 10, and that Schick shall not be
entitled to any set-off, reduction or other adjustment in the
Obligations in any way arising out of or relating to the alleged
performance, non-performance or inadequate performance by Merck of its
obligations under this Section 10. Merck's obligations under Section
10 shall survive any prepayment of the Secured Term Loans.
11. Miscellaneous.
(a) Entire Agreement. This Agreement, together with the Ancillary
Agreements, constitutes the entire agreement among the parties and
supersedes any previously negotiated agreements or understandings
relating to the subject matter hereof. Except as otherwise expressly
provided in this Agreement, the terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective
successors and permitted assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any third
party any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided in this
Agreement.
(b) Survival of Warranties. The warranties, representations and covenants
of Schick and Merck contained in or made pursuant to this Agreement
and the Ancillary Agreements shall survive the execution and delivery
of this Agreement, the Initial Closing and the Subsequent Closing, and
shall in no way be affected by any
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investigation of the subject matter thereof made by or on behalf of
any party.
(c) Governing Law. This Agreement and the Ancillary Agreements shall be
governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and intended to be wholly
performed in New York.
(d) Counterparts. This Agreement and the Ancillary Agreements may be
executed in various counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
(e) Titles and Subtitles. The titles and subtitles used in this Agreement
and the Ancillary Agreements are used for convenience only and are not
to be considered in construing or interpreting this Agreement or the
Ancillary Agreements.
(f) Expenses. Schick shall pay all costs and expenses that it incurs with
respect to the negotiation, execution, delivery and performance of
this Agreement and the Ancillary Agreements, and Merck shall pay all
costs and expenses that it incurs with respect to the negotiation,
execution, delivery, and performance of this Agreement and the
Ancillary Agreements.
(g) Amendments and Waivers. Any term of this Agreement and the Ancillary
Agreements may be amended only with the written consent of the parties
hereto. The observance of any term of this Agreement and the Ancillary
Agreements may be waived only by the written consent of the party who
was intended to benefit from such term.
(h) Severability. If one or more provisions of this Agreement or the
Ancillary Agreements are held to be unenforceable under applicable
law, such provision shall be excluded from this Agreement and the
balance of this Agreement and the Ancillary Agreements shall be
interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
(i) Assignment. This Agreement and the Ancillary Agreements and the rights
and obligations specified herein and therein shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Merck shall have the right to assign
its rights and obligations hereunder and thereunder to any successor
holder of a Secured Term Note and such successor holder shall have
all of the rights and shall be entitled to all of the
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benefits of Merck with respect to such Secured Term Note, this
Agreement and the Ancillary Agreements; provided however that Merck
shall not be entitled to assign its rights or obligations under
Section 10 of this Agreement. Schick shall not be entitled to assign
its rights or obligations under this Agreement or the Ancillary
Agreements.
(j) Cooperation. Each of the parties hereto shall cooperate with the other
in each and every way to carry out the transactions contemplated
herein and to deliver all documents and instruments deemed necessary
or appropriate to effectuate the provisions hereof.
(k) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if by telefax,
when delivered to the telefax operator of the recipient, if sent by
reliable overnight courier service providing a delivery receipt, one
(1) day after deposit with such courier or if mailed, seven (7)
business days after the time it was mailed, certified or registered,
return-receipt requested, postage prepaid, addressed to such party as
follows or at such other address as may hereafter be designated in
writing by such party to the other party hereto:
If to Schick:
Schick Technologies, Inc.
31-00 47th Avenue
Long Island City, New York 11101
ATTN.: David Schick
Telecopier No. (718) 937-5962
with a copy to:
Kelley Drye & Warren, LLP
101 Park Avenue
New York, New York 10178
ATTN.: Mark Bane, Esq.
Telecopier No.: (212) 808-7897
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If to Merck:
Merck & Co., Inc.
P.O. Box 4
Sumneytown Pike
West Point, PA 19486-0004
ATTN.: Senior Director, USHH Business Development
WP39-333
Telecopier No.: (215) 652-2131
with a copy to:
Merck & Co. Inc.
P.O. Box 4
Sumneytown Pike
West Point, PA 19486-0004
ATTN.: Assistant General Counsel - USHH Commercial
WP53C-316
Telecopier No.: (215) 652-6355
(m) Public Announcements; Use of Name. No public announcements or similar
publicity with respect to this Agreement, the Ancillary Agreements or
the transactions contemplated herein shall be made by either party
without the prior written approval of the other party. In addition,
neither party shall use the name of the other for any commercial
purpose without such other party's prior written approval. Nothing in
this Section 10(m), however, shall prevent either party from making
such disclosures as such party's legal obligations require; however,
in such event, the party who is required to make the disclosure will
allow the other party to review the disclosure sufficiently in advance
in order to provide suggestions on the form and substance of the
disclosure. In the event that either party intends to publish any data
or results from the clinical studies referred to in Section 10(a), the
party who intends to make the publication will allow the other party
to review the publication sufficiently in advance in order to provide
suggestions on the form and substance of the publication. Further,
each party agrees not to publish data derived from such studies that
the other party considers proprietary without the prior written
consent of such other party, which consent shall not be unreasonably
withheld.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first written above.
Schick Technologies, Inc. Merck & Co., Inc.
By: /s/ David Schick By: /s/ David Anstice
--------------------------- ---------------------------------
David Schick, President David Anstice, President USHH
By: /s/ Caroline Dorsa
---------------------------------
Caroline Dorsa, Treasurer
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<PAGE>
Confidential Treatment
SERVICE AND LICENSE AGREEMENT
BETWEEN
PHOTOBIT, LLC
AND
SCHICK TECHNOLOGIES INC.
This Service and License Agreement ("Agreement") is made as of the 24th
day of June 1996 (the "Effective Date") between Photobit, LLC ("Photobit"), a
California limited liability company with its principal place of business at
2529 Foothill Boulevard, Suite 104, La Crescenta, California 91214, and Schick
Technologies, Inc. ("Schick"), a New York corporation with its principal place
of business at 31-00 47th Avenue, Long Island City, New York 11101.
WHEREAS, the parties may from time to time agree in writing that
Photobit will provide certain services to Schick; and
WHEREAS, the parties have agreed that such services shall be provided in
accordance with the terms of this Agreement; and
WHEREAS, the California Institute of Technology ("Cal Tech"), through
its Jet Propulsion Laboratory ("JPL"), has been engaged in basic research in
active pixel sensors, conducted for the United States Government under contract
NAS7-1260 between Cal Tech and NASA; and
WHEREAS, that research led to the United States patents, patent
applications and other inventions listed in Exhibit A, which are owned by Cal
Tech, subject to certain rights of the United States Government; and
WHEREAS, Photobit entered into a License Agreement with Cal Tech dated
November 29, 1995 (the "Cal Tech Agreement"), pursuant to which Photobit is
granted a license under such patents, patent applications and other inventions;
and
WHEREAS, Schick wishes to obtain from Photobit, and Photobit wishes to
grant to Schick, a sublicense under such patents, patent applications and other
inventions in the Field (as defined in Section 1.1) in accordance with the terms
and conditions hereof;
<PAGE>
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NOW, THEREFORE, for and in consideration of the foregoing, of the mutual
covenants and undertakings contained herein and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intended to be legally bound, hereby agree as follows:
1. Definitions
1.1. "Field" means
*
1.2. "Gross Invoice Amount" means:
(i) If a Licensed Product is sold, leased or otherwise
distributed by Schick to a third party other than a Related Company,
Schick's actual billing or invoice amount for such Licensed Product;
(ii) If a Licensed Product is sold, leased or otherwise
distributed by Schick to a Related Company for subsequent distribution
by or for such Related Company other than as part of a larger product,
device or system incorporating the Licensed Product, the greater of
Schick's actual billing or invoice amount or the Related Company's
actual billing or invoice amount for such Licensed Product;
(iii) If a Licensed Product is sold, leased or otherwise
distributed by Schick to a Related Company for subsequent distribution
by or for such Related Company as part of a larger product, device or
system incorporating the Licensed Product, the greater of Schick's
actual billing or invoice amount or a good faith apportionment
of the Related Company's actual billing or invoice amount for such
larger product, device or
- -----------
* The confidential portion has been omitted pursuant to a request for
confidential treatment and the omitted material has been filed separately with
the Commission.
<PAGE>
- 3 -
system that represents the amount being charged for
the Licensed Product; or
(iv) If a Licensed Product is sold, leased or otherwise
distributed by Schick to a Related Company for use by such Related
Company, the greater of Schick's actual billing or invoice amount or the
billing or invoice amount that would have resulted from a hypothetical
arm's-length sale by Schick to a third party if such third party were
not a Related Company.
1.3. "Licensed Patent Rights" means worldwide rights to the inventions
described and claimed in the patents, patent applications and invention
disclosures listed in Exhibit A; any patents which issue on the applications or
disclosures listed in Exhibit A; reissues, reexaminations, renewals, extensions,
divisionals, continuations, and continuations-in-part of the foregoing; and any
foreign counterparts and any other forms of protection directed to the
inventions covered by the patents, applications and invention disclosures listed
in Exhibit A.
1.4. "Licensed Photobit Materials" means any reports, designs, drawings,
layouts, simulations, inventions, discoveries and other information, know-how
and work products created by Photobit in the performance of Services and
provided by Photobit to Schick in connection with Services.
1.5. "Licensed Product" means any product in the Field that (i) embodies
Photobit Materials or is otherwise made, imported, used, offered for sale or
sold through the use of Photobit Materials, or (ii) is covered by, or is made by
a process covered by, any valid claim of any Licensed Patents Rights; provided
that the term "Licensed Product" does not include any personal computer,
software therefor, monitor, display, keyboard or any wire leads or like
connectors associated with such a product.
1.6. "Related Company" means any corporation or other legal entity
directly or indirectly owned or controlled by Schick or its successors or
assigns, or any successor or assign of such an entity.
1.7. "Services" means professional or technical services, such as the
design of integrated circuits, that the parties may from time to time agree in
writing
<PAGE>
-4-
that Photobit will provide in accordance with the terms of this Agreement.
2. Services
2.1. From time to time, the parties may, but shall not be obligated to,
agree in writing that Photobit will provided certain Services to Schick. Each
such agreement for Services shall describe the Services to be provided and the
consideration to be paid by Schick to Photobit for the providing of the Services
(in addition to the royalties payable under Article 4 for certain uses of
Licensed Photobit Materials resulting from the Services). When the parties agree
that Services will be provided, the parties shall be bound by all the applicable
2.2. Photobit shall own all right, title and interest in and to Licensed
Photobit Materials, including all patent, copyright, trade secret and other
proprietary rights therein. However, Photobit shall not use Licensed Photobit
Materials on behalf of, or distribute all or any part of Licensed Photobit
Materials to, any third party in connection with the design, manufacture or sale
of products in the Field. In addition, if the parties agree that Photobit will
provide Schick Licensed Photobit Materials consisting of an integrated circuit
design and that Schick or a third party will create photolithographic masks
therefrom, then Schick or the third party shall own all right, title and
interest in and to such masks, subject to the underlying rights of Photobit in
the design. Schick acknowledges that Licensed Photobit Materials contain
valuable confidential and proprietary information of Photobit and may be
protected by patent, copyright, trade secret or other law. Except as set forth
above in this Section 2.2, Schick shall have only the licenses with respect to
Licensed Photobit Materials that are granted in Section 3.1. Schick shall not
use, reproduce or disclose Licensed Photobit Materials except as specifically
permitted by this Agreement.
2.3. At Schick's request, Photobit shall negotiate in good faith with
Schick terms pursuant to which Photobit will provide Services involving the
creation of modifications to integrated circuit designs previously created by
Photobit for Schick. If the parties are not able to agree on such terms, then,
<PAGE>
- 5 -
subject to Article 12, Schick may arrange to have such modifications provided by
an independent contractor reasonably acceptable to Photobit on terms no more
favorable to the third party than the terms Schick last proposed to Photobit. In
such a case, Photobit shall provide to Schick any existing layouts, schematics
and simulations for such designs that are reasonably necessary for such
independent contractor to provide such modifications. In other circumstances,
however, Schick shall not create or authorize the creation of modified versions
of integrated circuit designs previously created by Photobit for Schick.
2.4. Photobit may provide professional or technical services, such as
the design of integrated circuits, to customers other than Schick, and in doing
so, Photobit's personnel may use general knowledge and experience developed in
the course of providing Services to Schick. However, Photobit may not use any
knowledge or experience developed in the course of providing Services to Schick
to provide services to any third party in connection with the design,
manufacture or sale of products in the Field.
<PAGE>
*
- 6 -
<PAGE>
*
- 7 -
<PAGE>
*
- 8 -
<PAGE>
*
- 9 -
5. Records Reports and Payments
- ---------
* The confidential portion has been omitted pursuant to a request for
confidential treatment and the omitted material, consisting of approximately 4
pages has been filed separately with the Commission.
5.1. Schick shall keep complete and accurate records and books of
account containing all particulars and reasonable supporting documentation
concerning all Licensed Products made, imported, used, offered for sale, sold or
otherwise distributed by Schick or Related Companies under this Agreement, the
Gross Invoice Amount for Licensed Products and the calculation of amounts
payable under this Agreement. Schick shall retain such records and books for at
least three (3) years after Schick pays Photobit the applicable royalties.
Schick shall require Related Companies to maintain such records and books as are
necessary for Schick to comply with the foregoing obligations. During such three
(3) year period, within a reasonable time after receipt of notice from Photobit,
Schick shall allow a certified public accountant selected by Photobit and
acceptable to Schick to examine during business hours, no more often than
annually, any such records and books. Photobit shall neither use nor disclose to
any third party except Cal Tech any confidential information learned through an
examination of such records and books for any purpose other than determining and
enforcing Photobit's rights under this Agreement.
5.2. On or before the last day of each February, May, August and
November for so long as royalties are payable under this Agreement, Schick shall
render to Photobit a report in writing, setting forth by model the number of
units of Licensed Products manufactured and the number of units distributed
during the preceding calendar quarter by Schick and Related Companies and the
Gross Invoice Amount for Licensed Products. Each such reports shall also set
forth an explanation of the calculation of the royalties payable hereunder and
be accompanied by payment of the royalties shown by said report to be due to
Photobit.
5.3. If Schick fails to make any payment required under this Agreement
when due, Schick shall pay interest on such amount at an annual rate equal to
the
<PAGE>
- 10 -
lowest prime or base rate as published by The Wall Street Journal on or nearest
to the date on which the payment is due plus four percent (4%), which interest
shall accrue from the date the payment is due until the date such payment is
made in full. If such rate exceeds the rate allowed by applicable law, then the
highest rate allowed by law shall apply.
6. Commercialization
*
6.2. Photobit shall have the right, no more often than twice each year,
to require Schick to report to Photobit in writing on its progress in
introducing commercial Licensed Products.
6.3. If Schick is not fulfilling its obligations under Section 6.1 with
respect to all or any part of the Field then Photobit may so notify Schick in
writing and require that, within thirty (30) days after Photobit's notice,
Schick present to Photobit a written plan reasonably acceptable to Photobit
pursuant to which Schick would promptly commence fulfilling such obligations and
within ninety (90) days after Photobit's acceptance of such plan overcome the
effects of Schick's past failure to fulfill such obligations. Photobit's
acceptance of such a plan may not be unreasonably withheld. If Photobit accepts
such a plan presented by Schick, Schick thereafter shall carry out the plan. If
Schick does not present Photobit with such a plan within thirty (30) days after
Photobit's notice to Schick, if
- ----------
* The confidential portion has been omitted pursuant to a request for
confidential treatment and the omitted material has been filed
separately with the Commission.
<PAGE>
- 11 -
Photobit reasonably withholds its acceptance of such a plan, or if Schick does
not carry out a plan accepted by Photobit and thereby fulfill Schick's
obligations under Section 6.1 within ninety (90) days after Photobit's
acceptance of such plan, then, in addition to any other rights of Photobit at
law or in equity, Photobit shall have the right, at its option, either to
convert the license and sublicense granted in Sections 3.1(i) and (iii) to a
nonexclusive license and sublicense, or to terminate the license granted in
Section 3.1(i) and the sublicense granted in Section 3.1(iii), in any part of
the Field in which Schick is not fulfilling its obligations under Section 6.1.
7. Responsibility for Licensed Patent Riqhts
7.1. The parties acknowledge that under the Cal Tech Agreement, Cal Tech
bears the first responsibility for applying for, prosecuting and maintaining the
Licensed Patent Rights, although Photobit has the right to review and comment
upon and approve actions undertaken in the prosecution of patents and
applications, and in some circumstances, Photobit may have the right to apply
for, prosecute or maintain certain Licensed Patent Rights in Cal Tech's name. To
the extent that Photobit is involved in applying for, prosecuting and
maintaining the Licensed Patent Rights, Photobit shall use reasonable efforts to
consult with Schick concerning matters having a material effect on patent
protection in the Field for the inventions covered by the patents, applications
and invention disclosures listed in Exhibit A.
8. Infringement by Third Party
8.1. In accordance with the Cal Tech Agreement, the parties anticipate
that Cal Tech or Photobit generally will protect the Licensed Patent Rights from
infringement and prosecute infringers when, in their judgment, such action may
be reasonably necessary, proper and justified. To the extent that they do so,
control over any enforcement action, payment of expenses, and the allocation of
any recovery between Cal Tech and Photobit shall be determined in accordance
with the Cal Tech Agreement. To the extent that an infringement is in the Field,
the allocation of Photobit's portion of any recovery between Photobit and Schick
shall be determined in accordance with Section 8.5. To the extent that an
infringement is
<PAGE>
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outside the Field, Schick shall have no right to any part of the recovery.
8.2. If Schick (i) supplies Photobit with evidence of infringement of
Licensed Patent Rights in the Field by a third party, (ii) supplies Photobit
with the written opinion of a patent attorney selected by Schick who is of
recognized stature in the applicable country and who is experienced in the
applicable technical art that an enforcement action against the third party is
warranted by existing law or by a nonfrivolous argument for the extension,
modification or reversal of existing law or the establishment of new law, and
(iii) by written notice requests Photobit to take steps to enforce the Licensed
Patent Rights in the Field, then Photobit shall notify Cal Tech of such request
and consult with Schick in good faith concerning enforcement of the Licensed
Patent Rights; provided that under no circumstances shall Photobit or Cal Tech
be obligated to enforce the Licensed Patent Rights against any third party. If
Schick does so, and within six (6) months of the receipt of such evidence and
notice, neither Cal Tech nor Photobit either (a) cause the infringement in the
Field to terminate or (b) commence a legal action against the infringer, then,
to the extent permitted under the Cal Tech Agreement, Schick may, upon notice to
Photobit, commence an action against the infringer at Schick's expense and have
sole control of the action. In addition, if Schick advises Photobit of
infringement of Licensed Patent Rights in the Field by a third party, Photobit
shall consult with Schick in good faith concerning enforcement of the Licensed
Patent Rights, and when permitted under the Cal Tech Agreement, Photobit may in
its discretion commence, or permit Schick to commence, an action against the
infringer more rapidly than required by the foregoing procedures.
8.3. If one party commences an action to enforce the Licensed Patent
Rights, the other party shall fully cooperate with and supply all assistance
reasonably requested by the party commencing such action, including by using its
best efforts to have its employees testify when requested and to make available
relevant records, papers, information, samples, specimens, and the like. A party
commencing such an action shall bear the reasonable expenses incurred by the
other party in providing such cooperation and assistance requested pursuant to
this Section. A party commencing such an action shall keep the other party
informed of the progress of such action, and the other party shall be
<PAGE>
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entitled to be represented by counsel in connection with such action at its own
expense.
8.4. If Schick commences an enforcement action pursuant to Section 8.2,
Schick shall have the right to settle any claims, but only upon terms and
conditions that are reasonably acceptable to Cal Tech and Photobit. Should
Schick elect to abandon such an action other than pursuant to a settlement with
the alleged infringer that is reasonably acceptable to Cal Tech and Photobit,
Schick shall give timely notice to Photobit, which if it so desires, may
continue the action; provided, however, that the sharing of expenses and any
recovery in such suit shall be as agreed upon between the parties.
8.5. To the extent that Photobit commences an enforcement action against
an infringement in the Field as described in Section 8.1, or if Schick commences
an enforcement action pursuant to Section 8.2, any amounts paid to such party by
third parties as the result of such an action (such as in satisfaction of a
judgment or pursuant to a settlement) shall first be applied to reimbursement of
the unreimbursed expenses (including attorneys' fees) incurred by either party
and to payment of any portion of such amounts that may be payable to Cal Tech
under the Cal Tech Agreement. Seventy-five percent (75%) of any remainder shall
be retained by Schick and twenty-five percent (25%) of any remainder shall be
retained by Photobit.
8.6. Infringement or alleged infringement of Photobit's proprietary
rights in Licensed Photobit Materials in the Field may be enforced in accordance
with the procedures specified in this Article 8 for the enforcement of Licensed
Patent Rights, to the extent that those procedures are applicable to the
particular types of proprietary rights infringed.
9. Benefits of Litiqation, ExPiration or Abandonment
9.1. If one or more patents or particular claims thereof within the
Licensed Patent Rights expire, or are abandoned, or are declared invalid or
unenforceable or otherwise construed by a court of last resort or by a lower
court from whose decree no appeal is taken, or certiorari is not granted with
the period allowed therefor, then the effect thereof hereunder shall be:
(i) That such patents or particular claims shall, as of the date
of expiration or
<PAGE>
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abandonment or final decision of invalidity or unenforceability
as the case may be, cease to be included within the Licensed Patent
Rights for the purpose of this Agreement; and
(ii) That such construction so placed upon the Licensed Patent
Rights by the court shall be followed from and after the date of entry
of the decision, and royalties shall thereafter be payable by Schick
only in accordance with such construction.
9.2. If Schick challenges the validity of Licensed Patent Rights, Schick
may not cease paying royalties as of the date validity of the claims in issue
are challenged, but rather may cease paying royalties as to those claims only
after a final adjudication of invalidity of those claims.
10. Term and Termination
10.1. Unless terminated in accordance with the provisions of this
Agreement, this Agreement shall remain in effect until the last of the patents
of the Licensed Patent Rights expires and for any time thereafter that Schick
continues to make, have made, import, use, offer to sell, sell or otherwise
distribute Licensed Products that embody Licensed Photobit Materials or are
otherwise made, imported, used, offered for sale, sold or otherwise distributed
through the use of Licensed Photobit Materials.
10.2. Photobit shall have the right to terminate this Agreement if
Schick materially breaches its obligations under this Agreement, including by
failing to make any payment as and when required by this Agreement, and Schick
fails to remedy the breach within sixty (60) days after receiving notice of the
breach from Photobit. Upon any such termination, Schick and Related Companies
shall have six (6) months to complete the manufacture of any Licensed Products
that then are work in progress and to sell their inventory of Licensed Products,
provided that Schick pays the applicable royalties in accordance with Section
5.2.
10.3. Schick shall have the right to terminate this Agreement upon sixty
(60) days written notice. If Schick does so, it shall submit all required
reports and make all required payments in accordance with Section 5.2
<PAGE>
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10.4. No termination of this Agreement shall relieve Schick of the
liability for payment of any royalty due for Licensed Products made prior to the
effective date of such termination.
11. Warranties and Negation
11.1. The parties each represent and warrant that they have the right,
power and authority to enter into and to perform their obligations under this
Agreement. Photobit specifically represents and warrants that:
(i) It has the right to grant the licenses and sublicense
granted in Section 3.1;
(ii) It has received no written communication asserting that a
prior knowledge, use, patent, publication, act or event renders
unpatentable any of the claims or inventions to which the Licensed
Patent Rights pertain; and
(iii) It has not entered into and will not enter into any
contract or other arrangement with any third party, including without
limitation any lien, mortgage, encumbrance, license, grant of rights,
release or covenant not to sue, with respect to the Licensed Patent
Rights or the Licensed Photobit Materials in the Field that is in
conflict with, inconsistent with, or in derogation of the terms of this
Agreement.
11.2. Nothing in this Agreement shall be construed as:
(i) A representation or warranty of Photobit as to the validity
or scope of Licensed Patent Rights or any claim thereof;
(ii) A representation or warranty that any Licensed Product is
or will be free from infringement of rights of third parties;
(iii) An obligation to bring or prosecute actions or suits
against third parties for infringement; or
(iv) Conferring by implication, estoppel or otherwise, any
license or rights under any
<PAGE>
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patents of Cal Tech or Photobit other than Licensed Patent
Rights, regardless of whether such other patents are dominant or
subordinate to Subject Technology.
11.3. PHOTOBIT MAKES NO EXPRESS OR IMPLIED WARRANTIES (INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) AND
ASSUMES NO RESPONSIBILITIES WHATEVER WITH RESPECT TO SERVICES OR WITH RESPECT TO
THE MANUFACTURE, IMPORT, USE, SALE, OR OTHER DISTRIBUTION BY SCHICK OR RELATED
COMPANIES OF LICENSED PRODUCTS.
12. Confidentiality
12.1. For the purpose of this Article 12, the term "Confidential
Information" means any material or information relating to a party's research,
development, trade secrets and business operations and affairs that the party
treats as confidential. Licensed Photobit Materials shall be deemed Confidential
Information of Photobit. The term "Receiving Party" means a party that has
access to Confidential Information of the other party (the "Disclosing Party").
12.2. A Receiving Party shall not use the Disclosing Party's
Confidential Information for any purpose other than in accordance with this
Agreement and shall not disclose Confidential Information to any person other
than its employees and its independent contractors subject to a nondisclosure
obligation comparable in scope to this Article, which employees and independent
contractors have a need to know such Confidential Information.
12.3. Notwithstanding Section 12.2, a Receiving Party may use for any
purpose or disclose any material or information that (i) is or becomes publicly
known through no fault of the Receiving Party; (ii) is developed independently
by the Receiving Party; (iii) is known by the Receiving Party when disclosed by
the Disclosing Party if the Receiving Party does not then have a duty to
maintain its confidentiality; or (iv) is rightfully obtained by the Receiving
Party from a third party not obligated to preserve its confidentiality. A
Receiving Party also may disclose Confidential Information to the extent
required by a court or other governmental authority, provided that (a) the
Receiving Party gives the Disclosing Party reasonable notice of the disclosure,
(b) the Receiving Party uses reasonable
<PAGE>
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efforts to resist disclosing the Confidential Information, and (c) the Receiving
Party cooperates with the Disclosing Party on request to obtain a protective
order or otherwise limit the disclosure.
12.4. The parties acknowledge that either party's breach of Section 12.2
would cause the other party irreparable injury for which it would not have an
adequate remedy at law. In the event of a breach, the non-breaching party shall
be entitled to injunctive relief in addition to any other remedies it may have
at law or in equity.
13. Indemnity
13.1. Photobit shall defend, indemnify and hold harmless Schick and its
directors, officers, agents, employees and shareholders from and against all
claims, liabilities, suits, losses, damages and expenses, including costs and
reasonable attorney's fees, ("Claims") relating to or resulting from any actual
or alleged infringement of any copyright or mask work right by Licensed Photobit
Materials. Schick shall notify Photobit promptly of any Claims against Schick
covered by the foregoing indemnity. Photobit shall have the sole right to
control and defend or settle any litigation within the scope for the indemnity,
through counsel selected by Photobit and reasonably acceptable to the
indemnified parties, except that in the case of a conflict of interest between
Photobit and an indemnified party, Photobit shall provide separate counsel for
the indemnified party, which counsel shall be selected by the indemnified party.
All indemnified parties shall cooperate to the extent necessary in the defense
of any Claims. Photobit hereby waives any rights that it may acquire by way of
subrogation by reason of any indemnification paid hereunder.
13.2. Schick shall defend, indemnify and hold harmless Photobit, Cal
Tech, and their respective directors or trustees, officers, agents, employees
and shareholders from and against all Claims relating to or resulting from any
actual or alleged infringement of any patent, copyright, trade secret, or other
proprietary right other than the Licensed Patent Rights by any product, device
or system made, imported, used, sold or otherwise distributed by Schick or any
Related Company, except to the extent that such claims necessarily result from
infringement of any copyright or mask work right by Licensed Photobit Materials
and are subject to
<PAGE>
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Section 13.1, and any other Claims relating to or resulting from the
manufacture, import, use, sale or other distribution of such products, devices
or systems (including but not limited to Claims for personal injury, death, or
property damage). Photobit shall notify Schick promptly of any Claims against
Photobit covered by the foregoing indemnity. Schick shall have the sole right to
control and defend or settle any litigation within the scope of indemnity,
through counsel selected by Schick and reasonably acceptable to the indemnified
parties, except that in the case of a conflict of interest between Schick and an
indemnified party, Schick shall provide separate counsel for the indemnified
party, which counsel shall be selected by the indemnified party. All indemnified
parties shall cooperate to the extent necessary in the defense of any Claims.
Schick hereby waives any rights that it may acquire by way of subrogation by
reason of any indemnification paid hereunder.
14. Insurance
14.1. At such time as Schick begins to sell or otherwise distribute
Licensed Products, Schick shall at its sole expense, obtain policies of
comprehensive general liability insurance issued by insurers acceptable to
Photobit in amounts not less than one million dollars ($1,000,000) per incident
and five million dollars ($5,000,000) in annual aggregate and naming those
indemnified under Section 13.2 as additional insureds. Such insurance shall
provide (i) product liability coverage and (ii) broad form contractual liability
coverage for the indemnity of Article 13. Such insurance shall be primary
coverage without right of contribution from any Photobit insurance. Insurance
obtained by Photobit is for the exclusive benefit of Photobit and will not inure
to the benefit of Schick. Such insurance policies obtained by Schick shall
provide that they may not be canceled or modified unless Photobit is given
thirty (30) days prior written notice by the insurer. Schick shall maintain such
insurance for at least four (4) years after Schick and Related Companies have
ceased commercial distribution or use of any Licensed Product.
14.2. Schick shall provide Photobit with written evidence of such
insurance upon request of Photobit. Schick shall provide Photobit with notice at
least thirty (30) days prior to any cancellation, non-renewal or material change
in such insurance, to the extent
<PAGE>
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Schick receives advance notice of such matters from its insurer.
15. Notices
15.1. All notices sent under this Agreement shall be in writing and (i)
hand delivered; (ii) transmitted by telex, legible telecopy or cable, with a
copy sent concurrently by certified mail, return receipt request; or (iii)
delivered by prepaid overnight courier.
15.2. Notices shall be sent to the parties at the following addresses or
such other addresses as the parties subsequently may provide by written notice:
If to Photobit:
2529 Foothill Boulevard
Suite 104
La Crescenta, California 91214
Attention: Dr. Sabrina E. Kemeny
Phone: (818)248-4393
Fax: (818)542-3559
If to Schick:
31-00 47th Avenue
Long Island City, New York 11101
Attention: David Schick
Phone: (718)937-5765
Fax: (718)937-5962
and a duplicate copy to
Fitzpatrick, Cella, Harper & Scinto
277 Park Avenue
New York, New York 10172
Attention: Michael P. Sandonato, Esq.
Phone: (212)758-2400
Fax: (212)758-2982
16. Miscellaneous
16.1. Neither party shall advertise or otherwise publicize the existence
of this Agreement or the relationship between the parties without the prior
written consent of the other party.
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16.2. Schick shall not use the names of Photobit, Cal Tech or JPL in any
advertising or publicity material, or make any form of representation or
statement which would constitute an express or implied endorsement by Photobit,
Cal Tech or JPL of any Licensed Product, and Schick shall not authorize any
third party to do so, without first having obtained written approval from the
appropriate entity.
16.3. Neither party shall disclose the terms and conditions of this
Agreement to any third party other than its attorneys, consultants, accountants,
auditors, shareholders and others to whom a party has a bona fide business
reason for disclosing the terms and conditions of the Agreement; provided that
each party may disclose the terms and conditions of this Agreement as may be
required by law or to enforce the provisions hereof; and further provided that
Photobit may provide a copy of this Agreement to Cal Tech.
16.4. Schick shall cause all Licensed Products that are covered by, or
made by a process covered by, any valid claim of any Licensed Patent Rights to
be manufactured substantially in the United States.
16.5. Schick shall cause all Licensed Products that are covered by, or
made by a process covered by, any valid claim of any Licensed Patent Rights to
be marked with appropriate notice that such Licensed Products are patented. To
the extent that Licensed Products are made, offered for sale, sold or otherwise
distributed in the United States, the form of such notice shall conform to the
requirements of 35 U.S.C. ss. 287(a). Schick also shall comply with any other
notice or legend requirements of applicable law.
16.6. This Agreement is subject in all respects to the laws and
regulations of the United States of America, including the Export Administration
Act of 1979, as amended, and any regulations thereunder.
16.7. Nothing in this Agreement shall be construed as creating a
partnership, joint venture or agency relationship between the parties, or as
authorizing either party to act as agent for the other.
16.8. This Agreement shall be governed by and construed in accordance
with the laws of the State of California, without regard to its conflict of laws
principles.
<PAGE>
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16.9. The provisions of this Agreement are severable, and the
unenforceability of any provision of this Agreement shall not affect the
enforceability of the remainder of this Agreement. The parties acknowledge that
it is their intention that if any provision of this Agreement is determined by a
court or arbitrator to be unenforceable as drafted, that provision should be
construed in a manner designed to effectuate the purpose of that provision to
the greatest extent possible under applicable law.
16.10. The rights and remedies provided in this Agreement and all other
rights and remedies available to either party at law or in equity are, to the
extent permitted by law, cumulative and not exclusive of any other right or
remedy now or hereafter available at law or in equity. Neither asserting a right
nor employing a remedy shall preclude the concurrent assertion of any other
right or employment of any other remedy, nor shall the failure to assert any
right or remedy constitute a waiver of that right or remedy.
16.11. Schick shall not assign any of its rights or obligations under
this Agreement to any third party without the prior written consent of Photobit,
except that without the prior written consent of Photobit, Schick may assign
this Agreement to a purchaser of substantially all of the assets of Schick,
provided that the purchaser agrees in writing to assume all of Schick's
obligations under this Agreement.
16.12. This Agreement shall be binding upon and inure to the benefit of
the parties, their successors, permitted assigns and legal representatives.
16.13. All headings in this Agreement are included solely for convenient
reference and shall not affect the meaning or interpretation of this Agreement.
16.14. This Agreement may be executed in counterparts, each of which
shall be deemed to be original but all of which together shall constitute a
single instrument.
16.15. The provisions of Articles 5 (Records, Reports and Payment), 11
(Warranties and Negation), 12 (Confidentiality), 13 (Indemnity), 14 (Insurance),
15 (Notices) and 16 (Miscellaneous) shall remain in effect after the expiration
or termination of this Agreement.
<PAGE>
- 22 -
16.16. This Agreement sets forth the complete agreement of the parties
concerning the subject matter hereof and supersedes all prior agreements between
the parties concerning the subject matter hereof. No claimed oral agreement
in respect thereto shall be considered as any part hereof.
16.17. No waiver of or change in any of the terms hereof subsequent to
the execution hereof claimed to have been made by any representative of either
party shall have any force or effect unless in writing, signed by duly
authorized representatives of the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers:
PHOTOBIT, LLC SCHICK TECHNOLOGIES, INC.
By: /s/ Sabrina Kemeny By: /s/ David Schick
---------------------------- ----------------------------
Name: Sabrina Kemeny Name: David Schick
-------------------------- --------------------------
Title: CEO Title: President
------------------------- -------------------------
Date: June 24, 1996 Date: 6/24/96
-------------------------- ---------------------------
<PAGE>
EXHIBIT A
*
- ---------
* The confidential portion has been omitted pursuant to a request for
confidential treatment and the omitted material has been filed separately with
the Commission.
<PAGE>
EXHIBIT B
*
- ---------
* The confidential portion has been omitted pursuant to a request for
confidential treatment and the omitted material has been filed separately with
the Commission.
<PAGE>
[LETTERHEAD OF SCHICK TECHNOLOGIES, INC.]
May 12, 1997
Via Facsimile: 215-652-2131
Merck & Company, Inc.
P.O. Box 4
Sunneytown Pike
West Point, PA 19486-0004
Attn: Senior Director, USHH Business Development
WP39-333
Dear Sir:
As per my telephone conversation earlier today with Patrick Magri, this
letter is intended to serve as a clarification of the Secured Term Loan
Agreement between Merck & Co., Inc. ("Merck") and Schick Technologies, Inc.
("Schick"), dated August 7, 1996 (the "Agreement"), and as a waiver by
Merck of a technical default possibly committed by Schick under the
Agreement.
1. Section 7(a)(i) of the Agreement provides:
"If Schick or an Affiliate shall Register any Qualifying Securities
under the 1933 Act in connection with the public offering of such
Qualifying Securities, Schick shall make an immediate prepayment on
the Obligations in an amount equal to the Net Proceeds (as
hereinafter defined) of such public offering;
This Section 7(a)(i) is hereby clarified as follows. Mearck intends and
interprets Section 7(a)(i) to mean the following:
"If Schick or an Affiliate shall Register any Qualifying Securities
under the 1933 Act in connection with the public offering of such
Qualifying Securities, Schick shall make an immediate prepayment on
the Obligations in an amount equal to the Obligations, but in no
event greater than the Net Proceeds (as hereinafter defined) of such
public offering;
2. On November 12, 1996 Schick was issued an unsecured interest-bearing
demand note by Waring Investments in return for a loan of $200,000. Waring
Investments, in which Mr. David Spector (Chief Financial Officer of Schick) is a
principal shareholder, repaid the note with accrued interest on February 25,
1997. Schick initially viewed such loan as a simple deposit of funds on account.
No other funds have been advanced to or are on deposit with Waring Investments.
Section 6(g) of the Agreement provides:
"Investments, etc. Schick shall not, directly or indirectly, (i)
purchase or otherwise acquire or own any stock or other securities
of any entity other than (A) immaterial investments (i.e.,
investments in amounts less than $30,000) and
<PAGE>
(B) investments in investment grade interest-bearing securities;
(ii) make or permit to be outstanding any loan or advance (other
than advances to employees for travel expenses and similar
ordinary course expenditures) or capital contributions to any other
entity; or (iii) guarantee or become or be liable with respect to,
directly or indirectly, any indebtedness, obligations, liabilities,
or dividends of any other entity."
Section 6(m) of the Agreement provides;
"Notice to Merck, Schick shall immediately notify Merck of the
occurrence of any event which constitutes an Event of Default or
which would, with the giving of notice, the passage of time, or
both, constitute an Event of Default."
Section 8(a)(v) of the Agreement provides that the following shall
constitute an Event of Default:
"Schick shall fail to perform or observe any covenant, term or
condition of this Agreement or the Ancillary Agreements, other than
a payment referred to in Section 8(a)(I), (ii) or (iii), provided
that if such failure is curable in its entirety within 10 days and no
cure period is otherwise afforded under the Agreement or the
Ancillary Agreement, then Schick shall be permitted a 10-day cure
period from the occurrence of such failure."
By this letter, Merck hereby waives any potential or actual default by
Schick under the Agreement that might have arisen with regard to the transfer of
$200,000 by Schick to Waring; provided, however, that the facts set forth in
Paragraph 2 hereof (which have been represented to Merck by Schick) are true and
correct and provided further that such waiver is strictly limited to the
specific $200,000 transaction described in Paragraph 2 hereof and shall not be
deemed a modification of the Agreement or a waiver of any other past, present or
future default.
We greatly appreciate your cooperation in this matter. If the form and
substance of this letter is acceptable to Merck, please have it executed below
by a duly authorized representative of Merck and return it to me as soon as
possible with a copy to Price Waterhouse LLP, Attn: George Rough, 117 Avenue of
the Americas, New York, NY 10036. In addition, I would greatly appreciate
receiving by facsimile an executed copy of this letter today, if possible, with
a facsimile copy to Mr. Rough at (212) 596-7979.
Sincerely,
/s/ David B. Schick
---------------------------
David B. Schick
President
Merck & Co., Inc. hereby agrees to the clarification and the waiver set forth
above.
By: /s/ Merck & Co., Inc.
-----------------------------
Merck & Co., Inc.
Name: Jeremy Allen
Title: VP Marketing
<PAGE>
EXHIBIT 11.1
Schick Technologies, Inc.
Computation of Earnings Per Share
<TABLE>
<CAPTION>
Weighted
Days Average
Shares Outstanding Shares
------------ ----------- -------------
<S> <C> <C> <C>
Year ended March 31, 1995
- -------------------------
Shares outstanding at April 1, 1994 6,224,683 365 6,224,683
Sale and issuance of common stock 14,980 303 12,435
Sale and issuance of common stock 128,800 31 10,939
Cheap stock consideration for common stock, stock
options and warrants issued during fiscal 1997 802,741 365 802,741
-----------
Weighted average shares outstanding 7,050,798
Net loss for the year ended March 31, 1995 $ (23,538)
-----------
Net loss per common share --
===========
Year ended March 31, 1996
- -------------------------
Shares outstanding at April 1, 1995 6,368,463 365 6,368,463
Issuance of common stock to employees 34,264 91 8,543
21,280 61 3,556
15,400 11 464
2,240 1 6
Issuance of common stock upon conversion of
stockholder loans 98,823 92 24,909
28,000 80 6,137
Issuance of common stock upon conversion of
notes payable 295,553 5 4,049
188,847 1 517
Cheap stock consideration for common stock, stock
options and warrants issued during fiscal 1997 802,741 365 802,741
-----------
Weighted average shares outstanding 7,219,385
Net loss for the year ended March 31, 1996 $(112,783)
-----------
Net loss per common share $ (0.02)
===========
</TABLE>
<PAGE>
EXHIBIT 11.1
Schick Technologies, Inc.
Computation of Earnings Per Share
<TABLE>
<CAPTION>
Weighted
Days Average
Shares Outstanding Shares
------------ ----------- -------------
<S> <C> <C> <C>
Year ended March 31, 1997
Shares outstanding at April 1, 1996 7,052,870 365 7,052,870
Issuance of common stock upon conversion of
notes payable 56,000 364 55,847
32,480 343 30,522
92,400 244 61,769
133,966 214 78,544
22,400 213 13,072
11,200 194 5,953
28,000 168 12,888
Issuance and sale of common stock 427,473 244 285,763
2,800 238 1,826
42,442 214 24,884
14,000 168 6,444
33,600 103 9,482
Shares issued as placement fee in private
placement 3,450 214 2,023
1,568 168 722
1,137 167 520
Issuance of compensatory common stock to an employee 1,445 45 178
Cheap stock consideration for common stock, stock options
and warrants issued during fiscal 1997 802,741 121 266,114
495,238 6 8,141
493,866 24 32,473
350,589 1 961
331,052 19 17,233
321,284 26 22,886
288,532 1 790
287,724 64 50,450
269,207 58 42,778
268,499 45 33,103
Options outstanding 6,551 365 6,551
----------------
Weighted average shares outstanding 8,124,787
Net loss for the year ended March 31, 1997 $ (351,977)
----------------
Net loss per common share $ (0.04)
================
</TABLE>
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in the Propsectus constituting part of this
Registration Statement on Form S-1 of our report dated May 9, 1997 relating to
the financial statements of Schick Technologies, Inc., which appears in such
Prospectus. We also consent to the application of such report to the Financial
Statement Schedule for the three years ended March 31, 1997 listed under Item
16(b) of this Registration Statement when such schedule is read in
conjunction with the financial statements referred to in our report. The
audits referred to in such report also included this schedule. We also
consent to the references to us under the headings "Experts" and "Selected
Financial Data" in such Prospectus. However, it should be noted that Price
Waterhouse LLP has not prepared or certified such "Selected Financial Data."
/s/ PRICE WATERHOUSE LLP
New York, New York
May 13, 1997
