<PAGE>
As filed with the Securities and Exchange Commission on May 1, 1998
Registration No. 333-31023
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
POST-EFFECTIVE AMENDMENT NO. 2
TO FORM S-1
ON FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
_______________
BIOLASE TECHNOLOGY, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C> <C>
Delaware 3845 87-0442441
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
</TABLE>
981 Calle Amanecer, San Clemente, California 92673
(714) 361-1200
(Address,Including Zip Code, and Telephone Number, Including Area Code, of
Principal Executive Offices)
Federico Pignatelli
Chairman of the Board
BioLase Technology, Inc.
981 Calle Amanecer
San Clemente, California 92673
(714) 361-1200
(Name, Address and Telephone Number of Agent for Service)
Copies of Communications to:
Cathryn S. Gawne, Esq.
Foley Lardner Weissburg & Aronson
One Maritime Plaza, Sixth Floor
San Francisco, California 94111-3404
(415) 434-4484
Telecopier No.: (415) 434-4507
APPROXIMATE DATE OF COMMENCEMENT
OF PROPOSED SALE TO PUBLIC: As soon as
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, as amended, check the following box: [X]
This Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933.
________________________________________________________________________________
<PAGE>
BIOLASE TECHNOLOGY, INC.
Cross-Reference Sheet Showing Location in Prospectus
of Information Required by Items of Form S-3
<TABLE>
<CAPTION>
Form S-3 Registration
Statement Item and Heading Location in Prospectus
---------------------------------------------------- ---------------------------------
<S> <C>
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.......................................... Inside Front Cover; Outside Back
Cover Pages
3. Summary Information, Risk Factors and Ratio of
Earnings to Fixed Charges........................... Prospectus Summary; Risk Factors;
Not Applicable
4. Use of Proceeds..................................... Use of Proceeds
5. Determination of Offering Price..................... Plan of Distribution
6. Dilution............................................ Not Applicable
7. Selling Security Holders............................ Principal and Selling
Stockholders
8. Plan of Distribution................................ Outside Front Cover Page; Plan
of Distribution
9. Description of Securities to be Registered.......... Dividend Policy; Description of
Securities
10. Interests of Named Experts and Counsel.............. Legal Matters; Experts
11. Material Changes.................................... The Company - Recent Development
12. Disclosure of Commission Position on Indemnification
for Securities Act Liabilities...................... Not Applicable
</TABLE>
ii
<PAGE>
PROSPECTUS
2,285,771 Shares
BIOLASE TECHNOLOGY, INC.
Common Stock
_______________
This Prospectus relates to an aggregate of 2,285,771 shares of common
stock, $.001 par value ("Common Stock") of BioLase Technology, Inc., a Delaware
corporation ("BioLase" and, together with its consolidated subsidiary, the
"Company"), heretofore issued to the persons listed herein (the "Selling
Stockholders"), or issuable to the Selling Stockholders pursuant to, among other
things, the exercise of the Company's Common Stock Purchase Warrants (the
"Warrants") and certain options to purchase Common Stock (the "Options"). Such
shares of Common Stock are being offered for the respective accounts of the
Selling Stockholders on The Nasdaq SmallCap Market at the then-prevailing
prices, or in negotiated transactions. The Common Stock is traded on The Nasdaq
SmallCap Market under the symbol "BLTI". On April 24, 1998, the last sale price
of the Common Stock as reported on The Nasdaq SmallCap Market was $2.875 per
share. The Company will receive no proceeds from the sale of such shares of
Common Stock by the Selling Stockholders; however, it will receive proceeds from
the exercise of the Warrants and the Options. See "Use of Proceeds". The
expenses of preparing and filing the Registration Statement, of which this
Prospectus forms a part (estimated at $75,000), are being paid by the Company.
_______________
SEE "RISK FACTORS" BEGINNING ON PAGE 3 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
_______________
The shares offered hereby were or will be acquired by the Selling
Stockholders from the Company in private placements or upon the exercise of the
Warrants or Options and are "restricted securities" under the Securities Act of
1933, as amended (the "Securities Act"). This Prospectus has been prepared for
the purpose of registering the shares under the Securities Act to allow for
future sales by the Selling Stockholders to the public without restriction. To
the knowledge of the Company, the Selling Stockholders have made no arrangement
with any brokerage firm for the sale of the shares. The Selling Stockholders may
be deemed "underwriters" within the meaning of the Securities Act. Any
commissions received by a broker or dealer in connection with resales of the
shares may be deemed underwriting commissions or discounts under the Securities
Act. See "Plan of Distribution".
The date of this Prospectus is May 5, 1998.
1
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
annual and quarterly reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information concerning the Company can be inspected at the
Commission's Public Reference Section, Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, as well as at the Commission's regional offices at 7
World Trade Center, 13th Floor, New York, New York 10048 and at Citicorp Center,
500 West Madison Street, Room 1400, Chicago, Illinois 60661-2511. Copies of such
material can also be obtained at prescribed rates at the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. In
addition, the Commission maintains a World Wide Web site on the Internet at
http:\www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants, including the Company, that file
electronically with the Commission.
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements appearing elsewhere in this Prospectus or
incorporated herein by reference. The factors discussed below under "Risk
Factors - Forward Looking Statements" and elsewhere in this Prospectus,
including documents incorporated herein by reference, are among certain risks,
uncertainties and other factors that in some cases have affected BioLase's
historic results and could cause actual results in the future to differ
significantly from the results anticipated in forward looking statements made in
this Prospectus, including documents incorporated herein by reference, in future
filings by BioLase with the Commission, in BioLase's press releases and in oral
statements made by authorized officers of BioLase. When used in this
Prospectus, including documents incorporated herein by reference, the words
"estimate", "project", "anticipate", "expect", "intend", "believe", "hope",
"may" and similar expressions, as well as "will", "shall" and other indications
of future tense, are intended to identify forward looking statements.
THE COMPANY
BioLase Technology, Inc., a Delaware corporation ("BioLase" and, together
with its consolidated subsidiary, the "Company"), designs, develops,
manufactures and markets laser-based systems for use in dental and medical
applications. The current generation of the Company's laser-based systems
incorporates its proprietary hydrokinetic ("HydroKinetic(TM)") technology into
its surgical tissue cutting system ("Millennium(TM)"), which utilizes
electromagnetic energy laser pulses from an erbium, chromium: yttrium scandium
gallium garnet ("Er,Cr: YSGG") laser and a proprietary air-water spray. In a
configuration utilizing higher power settings, the laser pulses act to rapidly
energize and transform atomized water droplets from the air-water spray into
smaller, high-speed mechanical cutting water particles, and the Millennium(TM)
system, when operating in this manner, is intended for use primarily in hard
tissue applications. In a configuration utilizing lower power settings, the
Er,Cr: YSGG laser incorporated into the Millennium(TM) system acts as a
conventional laser, with the air-water spray serving as a cooling agent. When
operating in this manner, the Millennium(TM) system is intended for use in soft
tissue applications. The Millennium(TM) system is currently marketed in the
United States for soft tissue dental applications and is being distributed in
Germany for both hard and soft tissue dental applications. In July 1997, the
Company received clearance from the Food and Drug Administration ("FDA") to
market a laser-based surgical tissue cutting system in the United States for a
broad range of dermatological and general surgical soft tissue applications. In
response to this clearance, the Company intends to introduce this laser-based
system in a configuration designed for lower power settings to the United States
domestic market, under the name DermaLase(TM). The Company has applied to the
FDA for clearance to market the Millennium(TM) in the United States for hard
tissue dental applications, and clinical studies in support of the application
have been completed and submitted to the FDA for its review. The Company
supports its earlier generations of laser-based systems with replacement parts
and service. The Company also has (i) an automated system used in endodontic
procedures for locating and shaping root canals, known as the Canal Finder
System(TM), which the Company markets along with a full range of other
proprietary and non-proprietary endodontic products, and (ii) an air-water spray
laser accessory, LaserSpray(TM), designed to cool the tissue receiving laser
energy and the surrounding tissue, that is incorporated into the Company's
laser-based systems and can be employed with fiber-coupled laser systems
manufactured by others. The Company is also developing the LaserBrush(TM), a
toothbrush that utilizes a light source to activate whitening and anti-bacterial
agents in special toothpaste compounds also being developed by the Company; a
fluid conditioning system, known as FlavorFlow(TM), that sanitizes, flavors and
administers fluids and enhances the scent of air present during dental and
medical procedures; and a line of biomaterials for dental and medical
applications.
The Company's principal executive offices are located at 981 Calle
Amanecer, San Clemente, California 92673, and its telephone number at that
location is (714) 361-1200.
2
<PAGE>
Recent Development
- ------------------
On April 14, 1998, the Company announced that it had entered into a letter
of intent under which it would acquire all of the assets of Laser Skin Toner,
Inc., a development stage company that is developing a proprietary non-invasive,
laser-based surgical technology applicable to aesthetic skin rejuvenation.
Completion of the acquisition is subject to a number of conditions including
satisfactory completion of due diligence examinations and the negotiation and
execution of a mutually acceptable definitive agreement.
THE OFFERING
<TABLE>
<S> <C>
Common Stock offered hereby...... 2,285,771 shares
Common Stock to be outstanding
after this Offering............. 14,196,162 shares(1)
Use of proceeds.................. The Company will not receive any portion of the proceeds from the
Common Stock to be sold in this Offering; however, it will receive
proceeds from the exercise of Warrants and Options, which proceeds
will be used for working capital and general corporate purposes.
See "Use of Proceeds".
</TABLE>
____________________
(1) Based on the number of shares outstanding at April 24, 1998. Assumes
exercise of the Warrants and Options; excludes (i) 1,691,960 shares of
Common Stock, not being registered hereunder, reserved for issuance upon
exercise of other warrants and options outstanding at April 24, 1998; and
(ii) 466,899 shares of Common Stock otherwise reserved for possible
issuance under the Company's 1990, 1992 and 1993 Stock Option Plans and
1990 and 1993 Stock Compensation Plans.
RISK FACTORS
THIS OFFERING INVOLVES SUBSTANTIAL INVESTMENT RISK, AND THE SHARES SHOULD
BE PURCHASED ONLY BY PERSONS WHO CAN AFFORD THE LOSS OF THEIR ENTIRE INVESTMENT.
IN EVALUATING AN INVESTMENT IN SHARES OF THE COMPANY, PROSPECTIVE INVESTORS
SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS, AMONG OTHERS, AS WELL AS
ALL OTHER INFORMATION SET FORTH HEREIN, INCLUDING THE EXHIBITS HERETO. THE
FOLLOWING DISCUSSION OF RISK FACTORS IS NOT COMPREHENSIVE, AND EACH PROSPECTIVE
INVESTOR IS ADVISED TO MAKE ITS OWN ANALYSIS OF THE RISKS ASSOCIATED WITH AN
INVESTMENT IN THE SHARES.
1. History of Net Losses; Future Profitability Uncertain. The Company
-----------------------------------------------------
reported net losses of $7,549,262, $3,050,333, $2,023,822, $2,463,259 and
$2,823,910 for the years ended December 31, 1993, 1994, 1995, 1996 and 1997,
respectively. The Company had an accumulated deficit of $27,623,339 at December
31, 1997. During the past five years, the Company has not generated sufficient
revenue to permit it to operate on a profitable basis. The Company's ability to
achieve profitable operations in the future will depend in large part upon
obtaining regulatory approvals for the marketing of various products for certain
applications and then successfully bringing its products to market and
generating sufficient revenue to produce a net profit. The likelihood of long-
term success of the Company must be considered in light of the expenses,
difficulties and delays frequently encountered in the development and
commercialization of new products and competitive factors in the marketplace, as
well as the burdensome regulatory environment in which the Company operates.
There can be no assurance that the Company will ever achieve significant
revenues or profitable operations.
2. Viability as Going Concern; Need for Additional Funding. The Company has
-------------------------------------------------------
suffered recurring losses from operations and shows a need for continued funding
that raises substantial doubt about its ability to continue as a going concern.
The Company's ability to continue as a going concern is dependent upon its
ability to obtain outside financing through the issuance of either additional
shares of its Common or Preferred Stock or debt securities and, ultimately, upon
a movement to profitability through increased sales, product improvement through
engineering and cost containment. Management believes that significant
additional capital resources will be required by mid-1998 to support working
capital requirements. The Company's capital requirements depend on numerous
factors, including the progress of its research and development programs, the
progress of pre-clinical and clinical testing, the time and cost involved in
obtaining regulatory approvals, the cost of filing, prosecuting, defending and
enforcing patent claims and other intellectual property rights, competing
technological and market developments, demand for its products, and payment
terms it is able to negotiate with its suppliers and customers.
3
<PAGE>
Based on its current business plan, the Company believes that its working
capital will remain adequate to meet its obligations through mid-1998, by which
time it will need to obtain additional equity or debt financing. The Company is
seeking such additional funding through a private equity placement. If this
private placement is not successful, the Company expects to seek such additional
funding through public or private financings or collaborative or other
arrangements with third parties. There can be no assurance that additional funds
will be available on acceptable terms, if at all. If additional funds are raised
by issuing equity securities, substantial dilution to existing stockholders may
result. If adequate funds are not available, the Company's ability to meet its
obligations would be greatly impaired, and the Company may be unable to continue
operations. The Company's consolidated financial statements do not include any
adjustments that might result from the outcome of the uncertainty about the
Company's ability to continue as a going concern.
If gross proceeds of at least $2,400,000 are raised in an equity or debt
financing, the Company believes that it will have sufficient working capital
available through the proceeds of this Offering and the revenue the Company
expects to generate to finance its activities at least until mid-1999, after
which the Company expects that it will be required to seek additional financing.
The Company has no commitment with respect to any future financing. There can
be no assurance that such financing will be available or available on acceptable
terms, or that such financing would not result in a substantial dilution of
stockholders' interests.
3. Product Development. The development of new technology is a lengthy and
-------------------
capital intensive process and is subject to unforeseen risks, delays, problems,
and costs. The Company's success will in part depend upon its ability to design,
develop and introduce new products and enhancements on a timely basis to meet
changing customer needs, technological developments and evolving industry
standards. There can be no assurance that the Company will be able successfully
to develop any additional products, including products currently under
development, or enhance existing products. Unanticipated technical or other
problems may occur which could delay the Company's development programs. Failure
to complete development of key products could result in the complete loss of the
funds committed by the Company to such products, which could be substantial. In
addition, products as complex as the Company's laser-based systems may contain
latent defects which could from time to time become apparent during commercial
use. Remedying such defects could require significant modifications at
substantial costs to the Company.
The German distributor of the Company's Millennium(TM) system has requested
a partial redesign of the handpiece, which forms a portion of the delivery
subsystem of the Millennium(TM) system, in order to address more effectively the
requirements of its marketplace. While in the process of effecting this
redesign, the Company has delayed shipment of additional Millennium(TM) systems
to its German distributor. The Company believes that it is making substantial
progress in the redesign of the handpiece.
4. Reliance on Single Customer; Concentration of Credit Risk. The
---------------------------------------------------------
Company's principal commercial product at the present time is its Millennium(TM)
laser-based system. Dentistry is the principal field in which the Millennium(TM)
system is currently utilized, and while the Millennium system is being
distributed in Germany for both hard and soft tissue dental applications, it can
currently be marketed in the United States only for soft tissue dental
applications. The Company has applied to the FDA for clearance to market the
Millennium(TM) in the United States for hard tissue dental applications and is
awaiting action by that agency.
Because of the limitations on marketing the Millennium(TM) system in the
United States, the German market is currently the predominant market for the
Company's laser based products, and during 1997 approximately two-thirds
(2/3rds) of the Company's net sales were made to the German distributor of the
Millennium(TM) system. The Company is currently deferring further sales to that
customer while the Company is engaged in the redesign of the handpiece for the
Millennium(TM) system. As a result, the Company's revenues during the first
quarter of 1998 will be substantially less than the Company's revenues during
the third and fourth quarters of 1997, which averaged approximately $609,000 per
quarter, although greater than the revenues recorded during the comparable 1997
quarter.
In order to promote the introduction of the Millennium(TM) system, the
Company provided the distributor introducing that system in Germany, the first
market to be approached, with extended payment terms. Primarily as a result of
the accommodation on payment terms, accounts receivable at December 31, 1997
were $1,060,000, as compared to $146,000 at December 31, 1996, and in accordance
with the Company's arrangements with its German distributor for the
Millennium(TM) system, those receivables remain outstanding. The inability to
collect such accounts receivable could have a material adverse effect on the
financial condition and results of operations of the Company.
5. Uncertainty of Product and Market Acceptance. The Company is only in the
--------------------------------------------
initial phases of the marketing of its HydroKinetic(TM) tissue cutting system,
the Millennium(TM) system. Initial sales to a German distributor commenced
during the second quarter of 1997. In July 1997, the Company received FDA
clearance to market a laser system incorporating a variation of the technology
utilized in the Millennium(TM) for a broad range of dermatological and general
surgical soft tissue applications. In this variation, called DermaLase(TM), the
utilization of lower power laser pulses does not result in the transformation of
water droplets into mechanical cutting water particles, but rather the air-water
spray acts as a cooling agent. There can be no assurance that the Millennium(TM)
system, including the DermaLase(TM) configuration, will receive market
acceptance; in addition, there can be no assurance that there will be market
acceptance of any of the Company's other products that may be introduced in the
future. Lasers have not been widely used in certain medical and dental
applications, and their effective use requires training and experience. The
acceptance of lasers may be adversely affected by their high cost, concerns by
patients and practitioners about their safety and efficacy, and the substantial
market acceptance and penetration of conventional dental and medical tools.
Current economic pressure may make dental
4
<PAGE>
and medical practitioners reluctant to purchase substantial capital equipment or
invest in new technology. The failure of dental and medical lasers to achieve
broad market acceptance would have a material adverse effect on the Company's
business, financial condition and results of operations.
While the Company believes that the technology incorporated in its
Millennium(TM) surgical tissue cutting system should be effective in a broad
range of medical and dental applications, this belief (except with respect to
dental hard tissue and certain dermatological applications, for which clinical
research has been conducted) is based largely on preliminary in vitro and in
vivo research and extrapolation of observations in such clinical research. No
assurances can be given that the technology incorporated in its Millennium(TM)
surgical tissue cutting system will prove to be applicable to, or will find
market acceptance in, any medical or dental fields or that the Company will
receive clearance from the FDA or other regulatory agencies to market the
Millennium(TM) or any other laser-based system or other products embodying its
HydroKinetic(TM) technology in any additional jurisdictions or for any
additional applications. No assurances can be given that any other technologies
or products that the Company is developing will prove effective or will find
market acceptance.
6. International Sales. In the years ended December 31, 1993, 1994, 1995,
-------------------
1996 and 1997, approximately 30%, 57%, 70%, 47% and 73%, respectively, of the
Company's sales were export sales, of which approximately 100%, 85%, 72%, 80%
and 93%, respectively, were sales to Europe. To the extent that international
sales continue to make a substantial contribution to Company revenues, currency
fluctuations could make the Company's products less competitive in foreign
markets, contribute to fluctuations in the Company's operating results and, if
the Company makes sales denominated in foreign currencies or maintains
significant net assets or liabilities denominated in foreign currencies, expose
the Company to currency exchange valuation risks. Political instability, longer
receivable collection periods and difficulty in collecting accounts receivable
also pose risks to international sales. Moreover, the laws of certain countries,
or the enforcement thereof, may not protect the Company's products, intellectual
property rights or contractual rights to the same extent as the laws of the
United States. There can be no assurance that these factors will not have a
material adverse effect on the Company's business and financial condition and
results of operations.
7. Product Liability Risk; Limited Insurance Coverage. The manufacture and
--------------------------------------------------
sale of the Company's laser-based systems entail significant risk of product
liability claims in the event that the use of such systems is alleged to have
caused adverse effects on a patient. Although the Company has taken and will
continue to take what it believes are appropriate precautions, including
maintaining general liability and commercial liability insurance policies which
include coverage for product liability claims, there can be no assurance that
the Company's insurance coverage limits are or will be adequate to protect the
Company from any liabilities it might incur in connection with the sale of its
products. In the future, product liability insurance or such increased coverage
as the Company may desire may not be available on acceptable terms or on any
basis whatsoever. A product liability claim or series of claims successfully
asserted against the Company in excess of its insurance coverage could have a
material adverse effect on the Company's business and financial condition and
results of operations. Additionally, it is possible that adverse product
liability actions could negatively affect the Company's ability to obtain and
maintain regulatory approval for its products, as well as damage the Company's
reputation in any or all markets in which it participates.
8. Competition; Possible Technological Obsolescence. Development by others
------------------------------------------------
of new or improved products, processes, or technologies may make the Company's
products obsolete or less competitive. The ability of the Company to compete is
dependent on the Company's ability regularly to enhance and improve its products
and successfully develop and market new products. Many of the Company's
competitors have greater, and in some cases much greater, financial, managerial,
marketing, and technical resources than the Company. There can be no assurance
that the Company will successfully differentiate itself from its competitors,
that the market will consider the Company's products to be superior to its
competitors' products, that the Company's competitors will not develop new or
enhanced products that are more effective than the products which have been or
may be developed by the Company, or that the Company will be able to adapt to
evolving markets and technologies, develop new products, or achieve and, if
achieved, maintain technological advantages.
9. Patents and Proprietary Rights; Proprietary Technology. The Company
------------------------------------------------------
relies, to a significant extent, on patents, trade secrets, and confidentiality
agreements to protect its proprietary technology. There can be no assurance as
to the breadth or degree of protection which existing or future patents, if any,
may afford the Company, that such patents will not be circumvented or
invalidated, or that the Company's products do not and will not infringe on
patents or violate proprietary rights of others. If a patent infringement claim
is asserted against the Company, or if the Company is required to enforce its
rights under an issued patent, the cost of such actions may be very high,
whether or not the Company is successful. While the Company is unable to predict
what such costs would be if it is obligated to pursue patent litigation, its
ability to fund its operations and to pursue its business goals may be adversely
affected.
10. Government Regulation. The Company's products are subject to
---------------------
significant government regulation in the United States and other countries. To
test clinically, produce, and market products for human diagnostic and
therapeutic use, the Company must comply with mandatory procedures and safety
standards established by the FDA and comparable foreign regulatory agencies.
Typically, such standards require that products be approved by the government
agency as safe and effective for their intended use before being marketed for
human applications. The approval process is expensive and time-consuming, and no
assurance can be given that any agency will grant approval for the sale of the
Company's products for various dental and medical applications, or that the
length of time and the expenditures that the approval process will require will
not be extensive.
5
<PAGE>
The FDA also imposes requirements on manufacturers and sellers of products
under its jurisdiction, such as those relating to labeling, manufacturing
practices, record keeping, and reporting. The FDA also may mandate post-
marketing practices, including those relating to record keeping and reporting.
There can be no assurance that the appropriate approvals from the FDA will
be granted, that the process to obtain such approvals will not be expensive or
lengthy, or that the Company will have sufficient funds to pursue such
approvals. The failure to receive requisite approvals for certain of the
Company's products or processes, when and if developed, or significant delays in
obtaining such approvals, could prevent the Company from commercializing its
products as anticipated, and could have a material adverse effect on the
business of the Company.
The Company is also subject to regulation under the Radiation Control for
Safety and Health Act administered by the Center for Devices and Radiological
Health ("CDRH") of the FDA. This law requires laser manufacturers to file new
product and annual reports, to maintain quality control, product testing, and
sales records, to incorporate certain design and operating features in lasers
sold to end-users, and to certify and label each laser sold to an end-user as
belonging to one of four classes, based on the level of radiation from the laser
that is accessible to users. Various warning labels must be affixed and certain
protective devices installed, depending on the class of the product. The CDRH is
empowered to seek fines and other remedies for violations of regulatory
requirements.
Various state dental boards are considering the adoption of restrictions on
the use of lasers by dental hygienists. In addition, dental boards in a number
of states are considering educational requirements regarding use of dental
lasers. While the scope of these restrictions and educational requirements is
not now known, they could have an adverse effect on sales of the Company's
laser-based products.
The FDA and other governmental agencies, both in the United States and in
foreign countries, may adopt additional rules and regulations that may affect
the Company's ability to develop and market its products.
11. Dependence on Suppliers. The Company purchases most of the components
-----------------------
included in its products from multiple suppliers; however, it does not maintain
long-term supply contracts with any of these suppliers. In addition, the Company
purchases the optical fiber used in the delivery system of its Millennium(TM)
system, including the DermaLase(TM) configuration, from a single source. The
disruption or termination of this source could have a material adverse effect on
the Company's ability to manufacture its Millennium(TM) system and,
consequently, on its business, financial condition and results of operations.
12. Possible Volatility of Common Stock Price; Limited Public Market;
-----------------------------------------------------------------
Compliance With Nasdaq Listing Requirements. The Company's Common Stock has been
- -------------------------------------------
listed on The Nasdaq SmallCap Market since November 12, 1992, and the Company
has no present plans to apply to list the Common Stock on any other domestic
securities exchange. In April 1997, the Company's Common Stock was also listed
on the Berlin Stock Exchange. Trading in the Common Stock has generally been
sporadic since its listing on The Nasdaq SmallCap Market, and there can be no
assurance that an active trading market in the Common Stock will be established
or maintained.
The market prices for securities of emerging companies, including the
Company, have historically been highly volatile. Significant volatility in the
market price of shares of Common Stock may arise due to factors such as the
Company's developing business, historic losses and relatively low price per
share. In addition, future announcements concerning the Company or its
competitors may have a significant impact on the market price of the Common
Stock. Such announcements might include financial results, the results of
testing, technological innovations, new commercial products, changes to
government regulations, government decisions on commercialization of products,
developments concerning proprietary rights, litigation or public concern as to
safety of the Company's products. As long as there is only a limited public
market for the Common Stock, the sale of a significant number of shares of
Common Stock at any particular time could be difficult to achieve at the market
prices prevailing immediately before such shares are offered, and the offering
of a significant number of shares of Common Stock at one time could cause a
severe decline in the price of the Common Stock.
For continued inclusion on The Nasdaq SmallCap Market, an issuer must
maintain (i) net tangible assets (total assets less the sum of total liabilities
and goodwill) of at least $2,000,000, (ii) net income of no less than $500,000
in the most recent fiscal year or in two of the three most recent fiscal years,
or (iii) market capitalization of at least $35,000,000, in addition to a minimum
bid price of $1 per share, a market value of the public float of at least
$1,000,000, a public float of at least 500,000 shares, at least two market
makers, and a minimum of 300 holders of 100 or more shares. At December 31,
1997, the Company had net tangible assets of $2,095,010, a market capitalization
of approximately $45,857,000, a public float of approximately 11,700,000 shares
worth approximately $39,880,000, and more than 300 holders of record owning at
least 100 shares each. On that date, however, it did not meet the alternative
net income criterion. If the Company continues to suffer significant losses from
operations without additional financing, it may not be able to meet the
requirements for the continued listing of Common Stock on The Nasdaq SmallCap
Market, in which case the Common Stock may be delisted from trading on The
Nasdaq SmallCap Market.
If the Common Stock were excluded from quotation and trading on The Nasdaq
SmallCap Market, it would likely trade on the over-the-counter market, in what
is commonly referred to as the "Electronic Bulletin Board" or "pink sheets".
Should that occur,
6
<PAGE>
holders of Common Stock may find it more difficult to dispose of, or to obtain
accurate quotations for the market price of, Common Stock. In addition, if the
Common Stock is not quoted on The Nasdaq SmallCap Market, it may be subject to a
rule that imposes restrictive sales practice requirements on broker-dealers
selling such securities to persons other than established customers and
accredited investors. For transactions covered by this rule, the broker-dealer
must, among other requirements, make a special suitability determination
regarding the purchaser and must receive the purchaser's written consent to the
transaction prior to any purchase. Consequently, the rule may restrict the
ability of broker-dealers to sell or limit the interest of broker-dealers in
selling Common Stock and may adversely affect the ability of holders of Common
Stock to sell shares. The exclusion of a security from continued quotation on
The Nasdaq SmallCap Market may also cause a decline in share price, a diminution
of news coverage of the Company, and greater difficulty in arranging future
financing.
13. Restructuring of Management. The Company's management was substantially
---------------------------
restructured in 1995. As a result, the Company's current operating management
has had only limited experience in the administration and management of the
Company. Donald A. La Point, who is the President and Chief Executive Officer of
the Company, was appointed to those positions in 1995.
The Company presently employs thirty-four (34) people. If and when the
scale of the Company's operations increases, the Company will be required to
increase the number of employees, including the number of management personnel.
No assurance can be given that the Company will be able to attract and retain
additional personnel, and particularly management personnel, having the
capabilities that the Company will seek.
14. Reliance Upon Key Employees. The success of the Company is
---------------------------
substantially dependent on the efforts of certain key personnel of the Company.
The Company does not presently have employment contracts with any of its key
personnel. The loss of such key personnel could adversely affect the Company's
business and prospects. In such event, there can be no assurance that the
Company would be able to employ qualified replacements on terms favorable to the
Company.
In seeking qualified personnel, the Company will be required to compete
with companies having greater financial and other resources than the Company
has. As some of its products are developed, the Company will have to attract
additional marketing, manufacturing, technical, scientific and administrative
personnel. Since the future success of the Company is, to a significant degree,
dependent upon its ability to attract and retain qualified personnel, the
Company's inability or failure to attract and retain such personnel could have a
materially adverse impact on the business of the Company.
15. No Dividends on Common Stock. The Company has not paid any cash
----------------------------
dividends on its Common Stock since its incorporation, and the Board of
Directors does not anticipate declaring any cash dividends on Common Stock in
the foreseeable future. The Company currently intends to utilize any earnings it
may achieve for reinvestment in its business. Future dividend policy will also
depend on the Company's earnings, capital requirements, financial condition,
debt covenants, and other factors considered relevant by the Company's Board of
Directors. It is unlikely that any dividends on Common Stock will be declared by
the Company in the foreseeable future.
16. Possible Issuance of Additional Shares. The Company is authorized to
--------------------------------------
issue 50,000,000 shares of Common Stock, of which 13,478,586 shares were issued
and outstanding as of April 24, 1998. As of that date, 2,409,536 shares of
Common Stock had been reserved for future issuance upon exercise of outstanding
options and warrants, and an additional 466,899 shares have been reserved for
possible issuance pursuant to the Company's stock option and stock compensation
plans. Further, the Company has authorized 1,000,000 shares of preferred stock,
$.001 par value per share (the "Preferred Stock"), of which 100 shares had been
designated and issued as Series A 6% Redeemable Cumulative Convertible Preferred
Stock, none of which is currently outstanding. The Company's Board of Directors
has authority to issue Preferred Stock in one or more series and to fix the
rights, privileges, restrictions and preferences thereof. Accordingly, the
Company may issue one or more series of Preferred Stock in the future that will
have preference over the Common Stock with respect to the payment of dividends
and upon its liquidation, dissolution, or winding up or have voting or
conversion rights which could adversely effect the voting power and percentage
ownership of the holders of the Common Stock. Although it has no present
commitments to do so (except as noted above), the Company may issue additional
shares of Common Stock, additional shares of Preferred Stock and other
securities in the future.
17. Impairment of Intangible Assets. During the fourth quarter of 1994, the
-------------------------------
Company recorded a charge of $959,000, representing a provision for the
impairment of the carrying value of its patents due to uncertainty regarding the
recoverability of such carrying value. The Company's 1994 evaluation included
consideration of such factors as the Company's failure by the fourth quarter of
1994 to achieve sufficient sales to permit profitable operations, extinguishment
of debt which had been issued to acquire certain patents, and the
underutilization of issued patents in various jurisdictions. In the event the
expected net cash flows from other long-lived assets is less than the carrying
value of such assets, the Company could suffer additional impairment losses.
18. Broad Discretion in Use of Proceeds. As set forth in "Use of
-----------------------------------
Proceeds", the net proceeds from the exercise of Options and Warrants have not
been allocated to specific purposes, but rather will be applied to general
working capital, the refinement and improvement of existing products, and the
development of products currently under development and products the Company may
develop in the future. Management will have considerable discretion in applying
such proceeds.
7
<PAGE>
19. Forward-Looking Statements. The forward looking statements contained
--------------------------
in this Prospectus are subject to various risks, uncertainties and other factors
that could cause actual results to differ materially from the results
anticipated in such forward looking statements. Included among the important
risks, uncertainties and other factors are those hereinafter discussed.
Few of the forward looking statements in this Prospectus deal with matters
that are within the unilateral control of the Company. There is substantial
government regulation of the manufacture and sale of medical products, including
many of the Company's products, by governmental agencies in both the United
States and foreign countries. These governmental agencies often have
considerable discretion in determining whether and when to approve the marketing
of the Company's products that have not yet received such approval.
The availability of equity and debt financing to the Company is affected
by, among other things, domestic and world economic conditions and the
competition for funds. Rising interest rates might affect the feasibility of
debt financing that is offered. Potential investors and lenders will be
influenced by their evaluations of the Company and its products and comparisons
with alternative investment opportunities.
The Company's products do not provide the exclusive means for accomplishing
an objective, and customers may choose alternative means. Many of the Company's
competitors have much greater financial resources and technical capabilities
than does the Company, which may enable such competitors to design and produce
superior products or to market their products in a manner that achieves
commercial success even in the face of technical superiority on the part of the
Company's products.
The Company's patents may not offer effective protection against
competitors. Competitors may be able to design around the Company's patents or
employ technologies not covered by such patents. In addition, the Company's
patents may be challenged, and even if such patents are upheld, the diversion of
financial and human resources associated with patent litigation could adversely
affect the Company. The Company may be found to be violating the patents of
others and forced to obtain a license under such patents or modify the design of
its products.
Rapid technological developments are expected to continue in the industries
in which the Company competes. The Company may not be able to develop,
manufacture and market products which meet changing user requirements or which
successfully anticipate or respond to technological changes on a cost-effective
and timely manner.
While the Company believes that its technology incorporated into its
Millennium(TM) surgical tissue cutting system should be effective in a broad
range of medical and dental applications, this belief (except with respect to
dental hard tissue and certain dermatological applications, for which clinical
research has been and is being conducted) is based largely on preliminary in
vitro and in vivo research and extrapolation of observations in such clinical
research. No assurances can be given that the Company's Millennium(TM)
technology will prove to be applicable to, or will find market acceptance in,
any medical or dental fields or that the Company will receive clearance from the
FDA or other regulatory agencies to market the Millennium(TM) system or other
products embodying its HydroKinetic(TM) technology or variations thereof for any
additional applications or in any additional jurisdictions. See "Business - The
Millennium(TM) System."
USE OF PROCEEDS
The Company will not receive any portion of the proceeds from the sale of
Common Stock to be sold in this Offering. The Company may receive net proceeds
of up to $2,481,516 from the exercise of the Warrants and the Options;
management currently anticipates that any such proceeds will be utilized for
working capital and for other general corporate purposes.
8
<PAGE>
PRINCIPAL AND SELLING STOCKHOLDERS
The following table sets forth certain information with respect to the
beneficial ownership of the Common Stock of the Company as of April 24, 1998
(assuming exercise of the Warrants and the Options), and as adjusted to reflect
the sale of the 2,285,771 shares of Common Stock offered hereby, (i) by all
persons known by the Company to beneficially own more than 5% of the outstanding
shares, (ii) by each director of the Company, (iii) by the Named Executive
Officer; (iv) by all executive officers and directors of the Company as a group,
and (v) by the Selling Stockholders. Unless otherwise indicated, the persons
listed below have sole voting and investment power with respect to the shares
listed across from their names in the table below.
<TABLE>
<CAPTION>
Shares Beneficially Owned Shares to be Sold Shares Beneficially Owned
Name of Beneficial Owner Before Offering(1) in This Offering After Offering(1)
- ------------------------------------------- ------------------------- -------------------- -------------------------
Number Percent Number Number Percent
------------ ---------- -------------------- ------------ ----------
<S> <C> <C> <C> <C> <C>
Federico Pignatelli(2) 353,750 2.5 - 353,750 2.5
Donald A. La Point(3) 403,076 2.8 - 403,076 2.8
George V. d'Arbeloff(4) 51,517 * 23,182(5) 28,335 *
All executive officers and directors
as a group (9 persons)(6) 1,248,506 8.2 23,182(5) 1,225,324 8.0
Advisor's Capital Investments Inc.
dba Perspective Advisory Group(7) 1,585,411 11.2 1,530,012 55,399 *
R. Gilbert & Elaine P. Allenby 64,117 * 46,364 17,753 *
Barclay Investments, Inc. 7,812 * 7,812 - *
William E. Barron IRA 49,364 * 46,364 3,000 *
Bigelow Plumbing Profit Sharing Plan
& Trust, John R. Bigelow - Trustee 26,858 * 23,182 3,676 *
Carla & John Bigelow 24,118 * 23,182 936 *
Bingle Trust, Robert P. Bingle - Trustee 51,521 * 46,364 5,157 *
Walter D. Bonin IRA 46,364 * 46,364 - *
Bradley Resources Company 7,900 * 5,000 2,900 *
Budish Trust, Ceder Trust Co. Ltd. - Trustee 92,728 * 92,728 - *
I.W. Caplitz IRA 24,182 * 23,182 1,000 *
William A. Chamlee 23,182 * 23,182 - *
Estate of Craig D. Chandor, Carol Sue 23,182 * 23,182 - *
Chandor, Trustee
Steven P. Charron 1,250 * 1,250 - *
Cobb Trust, Bertrand E. Cobb - Trustee 29,682 * 23,182 6,500 *
John D. Collins IRA 23,794 * 23,182 612 *
John D. & Amelia M. Collins 23,182 * 23,182 - *
Ralph J. Doudera 46,364 * 46,364 - *
Huijun Fang 23,182 * 23,182 - *
Daniel Ferron IRA 28,182 * 23,182 5,000 *
Frances Ferron IRA 28,182 * 23,182 5,000 *
Michael Ferrucci 5,795 * 5,795 - *
Flagship Medical 20,000 * 20,000 - *
E. Haffner & Joanne D. Fournier 33,182 * 23,182 10,000 *
William L. Frangel IRA 23,742 * 23,182 560 *
Richard Friedman 3,333 * 3,333 - *
G. Gargiulo & Co., Inc. 4,545 * 4,545 - *
Gem Holdings Corp. 200,000 1.4 200,000 - *
Bruce J. Gilmartin 46,364 * 46,364 - *
Haffner's Car Care Corp. 33,182 * 23,182 10,000 *
Ronald I. Heller IRA 10,000 * 10,000 - *
Edward Henderson 12,376 * 12,376 - *
Indian Creek Capital Ltd. 23,182 * 23,182 - *
InTerBanC Mortgage Service, Inc. 23,182 * 23,182 - *
Robert M. Kessler 5,000 * 5,000 - *
Edward J. & Pauline A. Kulak 25,722 * 23,182 2,540 *
John D. Lane Revocable Living
Trust DTD 9/14/89 25,182 * 23,182 2,000 *
</TABLE>
9
<PAGE>
<TABLE>
<CAPTION>
Shares Beneficially Owned Shares to be Sold Shares Beneficially Owned
Name of Beneficial Owner Before Offering(1) in This Offering After Offering(1)
- -------------------------------------------- ------------------------- -------------------- -------------------------
Number Percent Number Number Percent
------------ ---------- -------------------- ------------ ----------
<S> <C> <C> <C> <C> <C>
Steven Lee 5,000 * 5,000 - *
Antoinette Lenkowski 23,182 * 23,182 - *
Robert K. Mann 146,364 1.0 146,364 - *
Robert & Sharon Mann 23,182 * 23,182 - *
Raymond and Carolyn Marchuk 46,364 * 46,364 - *
Faye L. McNall 23,182 * 23,182 - *
Herbert J. Millette 23,182 * 23,182 - *
David S. Nagelberg IRA 5,000 * 5,000 - *
Sean A. & Julie M. O'Neill 23,182 * 23,182 - *
PacVest Associates(8) 76,365 * 76,365 - *
John Paino 122,728 * 92,728 30,000 *
John & Sarah Paino 75,918 * 69,546 6,372 *
Susan Paley 50,976 * 46,364 4,612 *
Robert Palmeiro 2,312 * 2,312 - *
Carlene Phillips IRA 24,031 * 23,182 849 *
Greig J. & Susan V. Picking 23,182 * 23,182 - *
Frank D. Pietroski 23,182 * 23,182 - *
James J. Pope 23,182 * 23,182 1,000 *
Robert A. Pustell Trust, Robert A. and
Margaret A. Pustell - Trustees 23,182 * 23,182 - *
Quad Capital Partners 23,182 * 23,182 - *
Arthur H. Robbins & Co. 79,630 * 69,546 10,084 *
Marvin H. Rothberg 24,182 * 23,182 1,000 *
Dennis S. Sargent IRA 23,182 * 23,182 - *
Dennis S. & Elissa P. Sargent 23,182 * 23,182 - *
Zalton Sarkady 23,182 * 23,182 - *
Ruth Schneider IRA 46,364 * 46,364 - *
Stephen & Judy Swanson 23,182 * 23,182 - *
Wallington Investments Ltd. 281,912 2.0 80,000 201,912 1.4
Yan-fang Wang 23,182 * 3,333 - *
West TN ENT Clinic Benefit Plan dtd. 1/8/89,
James H. Barker - Trustee 23,971 * 23,182 789 *
Western Reserve Life Assurance Company 165,910 1.2 115,910 50,000 *
</TABLE>
______________
* Less than one percent.
(1) The number of shares beneficially owned by each stockholder is determined
under rules promulgated by the Securities and Exchange Commission, and the
information is not necessarily indicative of beneficial ownership for any
other purpose. Under such rules, beneficial ownership includes any shares
as to which the individual has sole or shared voting or investment power
and also any shares which the individual has the right to acquire within 60
days after April 24, 1998. The inclusion herein of such shares, however,
does not constitute an admission that the named stockholder is a direct or
indirect beneficial owner of such shares. Unless otherwise indicated, each
person or entity named in the table has sole voting and investment power
(or shares such power with his or her spouse) with respect to all shares of
Common Stock listed as owned by such person or entity.
(2) Includes 171,250 shares of Common Stock issuable pursuant to options
exercisable on or within 60 days of April 24, 1998.
(3) Includes 400,000 shares of Common Stock issuable pursuant to options
exercisable on or within 60 days of April 24, 1998.
(4) Includes 33,335 shares of Common Stock issuable pursuant to options and
warrants exercisable on or within 60 days of April 24, 1998.
(5) Includes 5,000 shares of Common Stock issuable pursuant to warrants
exercisable on or within 60 days of April 24, 1998.
10
<PAGE>
(6) Includes 1,031,460 shares of Common Stock issuable pursuant to options and
warrants exercisable on or within 60 days of April 24, 1998.
(7) The address of Advisor's Capital Investments, Inc. is 17 Tripp Road,
Woodstock, Connecticut 06281. Advisor's Capital Investments, Inc.
expressly disclaims beneficial ownership of the shares of Common Stock
attributed to it in the above table; it does not have sole or shared power
or ability to direct the vote of said shares, but does have shared power to
dispose or direct the disposition of said shares.
(8) Robert Mann is an officer and director of Advisor's Capital Investments,
Inc., which holds an aggregate of 1,126,639 shares of Common Stock, and
PacVest Associates, which holds an aggregate of 76,365 shares of Common
Stock. He is the spouse of Sharon Mann, who, with Mr. Mann, holds an
aggregate of 23,182 shares of Common Stock. Mr. Mann expressly disclaims
beneficial ownership of the shares held by Program One, Inc., PacVest
Associates and Robert and Sharon Mann.
(9) Frank D. Pietroski is an officer of PacVest Associates and a director of
Advisor's Capital Investments, Inc. Mr. Pietroski expressly disclaims
beneficial ownership of the shares held by Advisor's Capital Investments,
Inc. and PacVest Associates.
PLAN OF DISTRIBUTION
The shares of Common Stock subject to this Prospectus may be sold from time
to time by the Selling Stockholders for their own accounts. The Selling
Stockholders may offer and sell the shares from time to time in transactions on
The Nasdaq SmallCap Market on terms to be determined at the time of such sales.
The Selling Stockholders may also make private sales directly or through a
broker or brokers. Alternatively, the Selling Stockholders may from time to time
offer shares of Common Stock offered hereby to or through underwriters, dealers
or agents, who may receive consideration in the form of discounts and
commissions; such compensation, which may be in excess of normal brokerage
commissions, may be paid by the Selling Stockholders and/or purchasers of the
shares of Common Stock offered hereby for whom such underwriters, dealers or
agents may act. The Selling Stockholders and any dealers or agents that
participate in the distribution of the shares of Common Stock offered hereby may
be deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act, and any discounts, commissions or concessions received and any
profit realized by them on the resale of shares as principals may be deemed
underwriting compensation under the Securities Act. The aggregate proceeds to
the Selling Stockholders from sales of the Common Stock offered hereby will be
the purchase price of the Common Stock less any brokers' commissions. The Common
Stock offered hereby may be sold from time to time in one or more transactions
at a fixed price, which may be changed, or at varying prices determined at the
time of such sale or at negotiated prices.
The Common Stock issuable upon exercise of the Warrants and Options and
offered hereby will be issued by the Company in accordance with the respective
terms thereof.
The Company is contractually obligated to keep this Prospectus current for
as long a period as any Warrants remain outstanding and for two years
thereafter. The Company may from time to time notify the Selling Stockholders
that this Prospectus is not current and that sales of the Common Stock may not
occur until the Prospectus is supplemented by sticker or amendment, as
appropriate. To the extent required, the specific shares of Common Stock to be
sold, the names of the Selling Stockholders, the respective purchase prices and
public offering prices, the names of any agent, dealer or underwriter and any
applicable commissions or discounts with respect to a particular offer will be
set forth in an accompanying Prospectus supplement, or, if appropriate, a post-
effective amendment to the Registration Statement of which this Prospectus forms
a part.
The laws of certain states may require that sale of the shares of Common
Stock offered hereby be conducted solely through brokers or dealers registered
in those states. In addition, in certain states the shares of Common Stock
offered hereby may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption therefrom is available.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the Common Stock offered hereby may not
simultaneously engage in market making activities with respect to the Common
Stock for a period of two business days prior to the commencement of such
distribution. In addition, without limiting the foregoing, the Selling
Stockholders will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder including, without limitation, Rules 10b-2,
10b-6 and 10b-7, which provisions may limit the timing of purchases and sales of
Common Stock by Selling Stockholders.
11
<PAGE>
The Company will pay substantially all the expenses incurred by the Selling
Stockholders and the Company incident to this Offering and the sale of the
Common Stock offered hereby to the public, but excluding any underwriting
discounts, commissions or transfer taxes. The expenses are estimated to be
approximately $75,000.
The Company has agreed to indemnify the Selling Stockholders against
certain liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
The validity of the Common Stock offered hereby has been passed upon for
the Company by Shapiro, Rosenfeld & Close, Los Angeles, California. Alan D.
Jacobson, Of Counsel to Shapiro, Rosenfeld & Close, holds options to purchase an
aggregate of 50,000 shares of the Company's Common Stock, all of which options
are fully vested. Options to purchase 20,000 of such shares have an exercise
price of $2.00 per share and expire in 2004; options to purchase 20,000 of such
shares have an exercise price of $3.25 per share and expire in 2006; the
remaining options have an exercise price of $3.00 per share and expire in 2007.
EXPERTS
The consolidated balance sheets as of December 31, 1997 and 1996 and the
consolidated statements of operations, stockholders' equity and cash flows for
each of the three years in the period ended December 31, 1997, incorporated by
reference in this registration statement, have been incorporated herein in
reliance on the report, which includes an explanatory paragraph regarding the
Company's ability to continue as a going concern, of Coopers & Lybrand L.L.P.,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
INCORPORATION BY REFERENCE
The following documents filed by the Company with the Commission (File No.
0-19627) under Section 13(a) or 15(d) of the Exchange Act are hereby
incorporated by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(b) The Company's definitive Proxy Statement dated April 20, 1998
(provided, however, that the information referred to in Item 402(a)(8) of
Regulation S-K of the Commission shall not be deemed incorporated by reference
herein); and
(c) The section of the Company's Registration Statement on Form S-1,
declared effective by the Securities and Exchange Commission on August 6, 1997,
entitled "Description of Securities".
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of this Offering shall also be deemed to be incorporated by
reference into this Prospectus, and to be a part hereof, from the dates of
filing of such documents. Any statement contained herein or in a document all
or a portion of which is incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, including any beneficial owner, upon the written or
oral request of any such person, a copy of any and all of the foregoing
documents which are incorporated herein by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
in such documents). Written requests should be directed to BioLase Technology,
Inc., 981 Calle Amanecer, San Clemente, California 92673, Attention: Corporate
Secretary. Telephone requests should be directed to (714) 361-1200.
12
<PAGE>
ADDITIONAL INFORMATION
A registration statement on Form S-1 (the "Registration Statement")
relating to the securities offered hereby has been filed by the Company with the
Commission. This Prospectus does not contain all of the information set forth in
the Registration Statement and the exhibits thereto. Statements contained in
this Prospectus as to the contents of any contract or other document referred to
are not necessarily complete and in each instance reference is made to the copy
of such contract or other document filed as an Exhibit to the Registration
Statement, each such statement being qualified in all respects by such
reference. For further information with respect to the Company and the Common
Stock being offered hereby, reference is made to the Registration Statement and
Exhibits. A copy of the Registration Statement may be inspected by anyone
without charge at the Commission's principal office located at 450 Fifth Street,
N.W., Washington, D.C. 20549, the Pacific Regional Office located at 5670
Wilshire Boulevard, 11th Floor, Los Angeles, California 90036-3648, the New York
Regional Office located at 7 World Trade Center, 13th Floor, New York, New York
10048, and the Chicago Regional Office located at Northwestern Atrium Center,
500 West Madison Street, Chicago, Illinois 60661-2511, and copies of all or any
part thereof may be obtained from the Public Reference Branch of the Commission
upon the payment of certain fees prescribed by the Commission. The Commission
also maintains a World Wide Web site on the Internet at http:\www.sec.gov that
contains reports, proxy and information statements and other information
regarding registrants, including the Company, that file electronically with the
Commission.
13
<PAGE>
===============================================================================
No dealer, salesperson or any other person has been authorized to give any
information or to make any representations not contained in this Prospectus and,
if given or made, such information or representations must not be relied upon as
having been authorized by the Company or the Selling Shareholders. 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 the information
contained herein is correct as of any time subsequent to the date hereof.
-------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Available Information...................................................... 2
Prospectus Summary......................................................... 2
Risk Factors............................................................... 3
Use of Proceeds............................................................ 8
Principal and Selling Stockholders......................................... 9
Plan of Distribution....................................................... 11
Legal Matters.............................................................. 12
Experts.................................................................... 12
Incorporation by Reference................................................. 12
Additional Information..................................................... 13
</TABLE>
================================================================================
2,285,771 Shares
BIOLASE TECHNOLOGY, INC.
Common Stock
PROSPECTUS
May 5, 1998
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
- ------- -------------------------------------------
See forth below are the expenses estimated in connection with the issuance
and distribution of the Registrant's securities, other than underwriting
commissions and discounts. Except for the SEC registration fee, all expenses
are estimated.
<TABLE>
<S> <C>
SEC registration fee $ 3,009
Printing and engraving expenses 10,000
Accounting fees and expenses 30,000
Legal fees and expenses 20,000
Blue Sky filing fees and expenses 3,000
Transfer Agent's fees and expenses 1,000
Miscellaneous expenses 7,991
-------
Total $75,000
=======
</TABLE>
Item 15. Indemnification of Directors and Officers.
- ------- -----------------------------------------
The Certificate of Incorporation and Bylaws of the Registrant indemnify its
officers and directors to the fullest extent permitted by Section 145 of the
Delaware General Corporation Law and applicable law. Section 145 of the
Delaware General Corporation Law makes provision for the indemnification of
officers, directors and other corporate agents in terms sufficiently broad to
indemnify such persons, under certain circumstances, for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933, as
amended (the "Securities Act").
Item 16. Exhibits and Financial Statement Schedules.
- ------- ------------------------------------------
Exhibit No. Exhibit
----------- -------
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Shapiro, Rosenfeld & Close
All other exhibits and financial statement schedules have been previously
filed.
Item 17. Undertakings.
- ------- ------------
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
1
<PAGE>
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the Certificate of Incorporation, the Delaware General
Corporation Law or otherwise, the Registration has been informed that in the
opinion of the commission such indemnification as against public policy as
expressed in the Act, and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, the Registrant will,
unless in the opinion of its counsel the matter has already been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it against public policy as
expressed in the Act, and shall be governed by the final adjudication of such
issue.
The undersigned Registrant hereby undertakes:
(1) That for purposes of determining any liability under the Act, the
information omitted form the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424B(b)(1) or (4) or 497(h)
under the Act, as amended, shall be deemed to be part of this registration as of
the time it was declared effective.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, as amended, each post-effective amendment shall be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Clemente, State of California on the 30th of
April, 1998.
REGISTRANT:
BIOLASE TECHNOLOGY, INC.
By: /s/ DONALD A. LA POINT
----------------------------------
Donald A. La Point
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to Registration Statement has been signed by the following persons in the
capacities and on the dates stated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------- -------------------------------------------- --------------
<S> <C> <C>
/s/ DONALD A. LA POINT President, Chief Executive Officer April 30, 1998
- ---------------------------- (Principal Executive Officer) and a Director
Donald A. La Point
/s/ STEPHEN R. TARTAMELLA Vice President, Chief Financial April 30, 1998
- ---------------------------- Officer (Principal Financial and
Stephen R. Tartamella Accounting Officer) and Secretary
/s/ FEDERICO PIGNATELLI Chairman of the Board of Directors April 30, 1998
- ----------------------------
Federico Pignatelli
/s/ GEORGE V. D'ARBELOFF Director April 30, 1998
- ----------------------------
George V. d'Arbeloff
</TABLE>
3
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Post-Effective Amendment
No. 2 to Form S-1 on Form S-3 (File No. 333-31023) of our report, which includes
an explanatory paragraph regarding the Company's ability to continue as a going
concern, dated February 27, 1998 on our audits of the consolidated financial
statements and consolidated financial statement schedule of BioLase Technology,
Inc. We also consent to the reference to our firm under the caption "Experts".
/s/ COOPERS & LYBRAND L.L.P.
Newport Beach, California
April 30, 1998
<PAGE>
EXHIBIT 23.3
[LETTERHEAD OF SHAPIRO, ROSENFELD & CLOSE]
April 30, 1998
BioLase Technology, Inc.
981 Calle Amanecer
San Clemente, California 92673
Re: BioLase Technology, Inc.
Registration Statement on Form S-1
SEC File No. 333-31023
----------------------------------
Gentlemen:
We consent to the use of our name under the caption "Legal Matters" in that
certain prospectus (the "Prospectus") constituting part of that certain
Registration Statement on Form S-1 (File No. 333-31023) (the "Registration
Statement") of BioLase Technology, Inc., and to the filing of our opinion, dated
August 5, 1997, as an exhibit to the Registration Statement.
By giving you this consent, we do not admit that we are experts with respect to
any part of the Registration Statement or Prospectus within the meaning of the
term "expert" as used in Section 11 of the Securities Act, or the rules and
regulations promulgated thereunder by the SEC, nor do we admit that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act.
Very truly yours,
/s/ SHAPIRO ROSENFELD & CLOSE
SHAPIRO, ROSENFELD & CLOSE
