Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3 Filing Table of Contents
Document/ExhibitDescriptionPagesSize 1: S-3 Biolase Technology, Inc. Form S-3 HTML 179K
2: EX-4.1 Specimen of Common Stock Certificate 2 11K
3: EX-4.2 Form of Common Stock Purchase Warrant 10 36K
4: EX-4.3 Form of Common Stock Purchase Warrant (Gem) 9 31K
5: EX-5.1 Opinion of Brobeck, Phleger & Harrison LLP 2 9K
6: EX-23.1 Consent of Independent Accountants 1 5K
Approximate date of commencement of proposed sale to
the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the
securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box. þ
If this form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ¨
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. ¨
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. ¨
CALCULATION OF REGISTRATION FEE
Title Of Shares
To Be
Registered
Amount
To Be Registered
Proposed Maximum
Offering
Price Per Share(1)
Proposed Maximum
Aggregate
Offering Price(1)
Amount Of Registration Fee
Common stock, $0.001 par value per share (including associated preferred stock purchase rights)
944,100 shares
$
5.02
$
4,739,382
$
436.02
(1)
Estimated based upon the average of the high and low sales prices of the Registrant’s common stock on May 28, 2002, as reported by the Nasdaq National
Market, solely for the purpose of calculating the registration fee pursuant to Rule 457(c) promulgated under the Securities Act of 1933, as amended.
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, as amended, or until
this registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information contained in this prospectus is not complete and may be changed. The selling stockholders may not sell these securities until
the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not
permitted.
This prospectus relates to
the sale of up to 221,600 shares of our common stock (and associated purchase rights) by the selling stockholders identified on page 12 of this prospectus and 722,500 shares of common stock issuable upon exercise of immediately exercisable warrants
to purchase common stock (and associated purchase rights) held by the selling stockholders. The prices at which the selling stockholders may sell the shares will be determined by the prevailing market for the shares or in negotiated transactions. We
will not receive any proceeds from the sale of shares offered under this prospectus. However, we will receive proceeds from the exercise of the warrants by the selling stockholders and those proceeds will be used for our general corporate purposes.
Our common stock is quoted on the Nasdaq National Market under the symbol “BLTI.” On May 31, 2002, the
last reported sale price of our common stock was $5.35 per share.
The shares of common stock offered or sold under this prospectus involve a high degree of risk. You should carefully consider the risk factors beginning on page 2 of this prospectus before
purchasing any of the shares of common stock offered under this prospectus.
Neither the Securities and
Exchange Commission nor any state securities commission has approved or disapproved of these securities, or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
You should rely only on information contained or incorporated by reference in this prospectus. We have not authorized any person to provide you with information that differs from what is contained or incorporated by reference in
this prospectus. If any person does provide you with information that differs from what is contained or incorporated by reference in this prospectus, you should not rely on it. This prospectus is not an offer to sell or the solicitation of an offer
to buy any securities other than the securities to which it relates, or an offer of solicitation in any jurisdiction where offers or sales are not permitted. The information contained in this prospectus is accurate only as of the date of this
prospectus, even though this prospectus may be delivered or shares may be sold under this prospectus on a later date.
In this prospectus, the terms “BioLase,”“our company,”“we,”“our,” and “us” refer to BioLase Technology, Inc.
We are a medical technology company that designs, develops, manufactures and markets advanced dental, cosmetic and surgical products. Our principal products are water and laser based systems currently focused for use in dentistry,
and consist of the WaterlaseTM (HydroKinetic®) surgical cutting system used for both hard and soft tissue applications, the TwiLiteTM diode laser used solely for soft tissue applications and LaserSmileTM, an add-on application to the TwiLite laser for cosmetic teeth whitening. We also market our HydroKinetic technology for complete root canal
therapy (EndoLaseTM) and for cutting, shaving, contouring and resection of oral osseous tissues (bone)
(OsseoLaseTM).
In May 2002, our common stock was listed and began trading on the Nasdaq National Market. Our common stock previously traded on the Nasdaq SmallCap Market.
We were incorporated in Delaware in February 1987 as Pamplona Capital Corp., and we changed our name to PFG Dental Incorporated in July
1989. We then changed our name to Endo Technic International Corporation in August 1989, to Laser Endo Technic Corporation in August 1991, to Laser Medical Technology, Inc. in March 1992 and finally to BioLase Technology, Inc. in May 1994. Our
principal executive offices are located at 981 Calle Amanecer, San Clemente, California92673, and our telephone number is (949) 361-1200.
RISK FACTORS
Our business is subject to a number of risks, some of which are
discussed below. Other risks are presented elsewhere in this prospectus and in the information incorporated by reference into the prospectus. Before deciding to invest in our company or to maintain or increase your investment, you should carefully
consider the risks described below, in addition to the other information contained in this prospectus (including the information incorporated by reference) and in our other filings with the Securities and Exchange Commission, including our Annual
Report on Form 10-K for the year ended December 31, 2001, as well as our subsequent reports on Form 10-Q and Form 8-K. The risks and uncertainties described below are not the only ones facing our company. Additional risks and uncertainties not
presently known to us or that we currently deem immaterial may also affect our business operations. If any of these risks actually occur, our business, financial condition or results of operations could be seriously harmed. In that event, the market
price for our common stock could decline and you may lose all or part of your investment.
Our Business Depends on the Acceptance
of Our Products, and It Is Uncertain Whether the Market Will Broadly Accept Our Products.
Our future success
will depend on our ability to demonstrate to dentists and physicians the potential cost and performance advantages of our laser systems over traditional methods of treatment and, to a lesser extent, over competitive laser systems. Our products
represent relatively new technologies in the dental market, and currently only represent a very small portion of the dental and medical markets. Historically, dental practitioners generally have been slow to adopt new technologies on a widespread
basis. Factors that may inhibit mass adoption of laser technologies by dentists and physicians include the cost of the products, concerns about the safety, efficacy and reliability of lasers and the ability to obtain reimbursement of laser
procedures under health plans. Current economic pressure may make dentists and physicians reluctant to purchase substantial capital equipment or invest in new technologies. The failure of medical lasers to achieve broad market acceptance would have
an adverse effect on our business, financial condition and results of operations. We cannot assure you that we will have sufficient resources to continue to successfully market our products to achieve broad market acceptance.
We Depend on a Limited Number of Suppliers, and If We Cannot Secure Alternate Suppliers, Our Business
May Be Harmed.
We purchase certain raw materials and components included in our products from a limited group
of qualified suppliers, and we do not have long-term supply contracts with any of our key suppliers. Our growth and ability to meet customer demand depends in part on our ability to obtain timely deliveries of materials and components from our
suppliers. Certain components of our products are currently available only from a single source or limited sources. Although we believe that alternate sources of supply are available for most of our single-sourced materials and components, a change
in a single or limited source supplier, or an inability to find an alternate supplier, could create manufacturing delays, disrupt sales and cash flow, and harm our reputation, any of which could adversely affect our business, financial condition and
results of operations.
Our Quarterly Revenues and Operating Results May Fluctuate in Future Periods and We May Fail to Meet
Expectations, Which May Cause The Price of Our Common Stock to Decline.
Our quarterly revenues and operating
results have fluctuated and are likely to continue to vary from quarter to quarter due to a number of factors, many of which are not within our control. If quarterly revenues or operating results fall below the expectations of investors or
securities analysts, the price of our common stock could decline substantially. Factors that might cause quarterly fluctuations in our revenues and operating results include the factors described in the subheadings below as well as:
•
the evolving and varying demand for dental and medical lasers;
•
our ability to develop, introduce, market and gain market acceptance of new products and product enhancements in a timely manner;
•
our ability to control costs;
•
the size, timing, rescheduling or cancellation of significant customer orders;
•
the introduction of new products by competitors;
•
the availability and reliability of components used to manufacture our products;
•
changes in our pricing policies or those of our suppliers and competitors, as well as increased price competition in general;
•
the mix of our domestic and international sales, and the risks and uncertainties associated with our international business;
•
costs associated with any future acquisitions of technologies and businesses; and
•
general global economic and political conditions, including international conflicts and acts of terrorism.
In addition, a significant amount of our sales in any quarter may consist of sales through a single distributor. As a result, the timing
of orders by this distributor may impact our quarter-to-quarter results. The loss of or a substantial reduction in orders from this distributor could seriously harm our business, financial condition and results of operations. Due to all of the
factors listed above and the other risks discussed in this report, you should not rely on quarter-to-quarter comparisons of our operating results as an indication of our future performance.
We May Not Be Able to Secure Additional Financing to Meet Our Future Capital Needs.
Our line of credit expires on January 31, 2003. If we are unable to renew our line of credit at that time on acceptable terms, or at all, and we are required to repay the line of credit, absent
sufficient cash flow from operations or the sale of securities, the diversion of resources for that purpose will adversely affect our operations and financial condition and our ability to achieve future growth in our net sales. In addition, during
2002 and 2003, all of our long-term debt will become due and payable. Unless we can generate sufficient cash flow from sustained profitability, we will continue to be dependent on the availability of external financing to meet our
operating and capital needs, including the repayment of current debt obligations. We may not be able to secure additional debt or equity financing on terms acceptable to us, or at all, at the
time when we need such funding. If we do raise funds by issuing additional equity or convertible debt securities, the ownership percentages of existing stockholders would be reduced, and the securities that we issue may have rights, preferences or
privileges senior to those of the holders of our common stock. If we raise additional funds by issuing debt, we may be subject to limitations on our operations, including limitations on the payment of dividends. Our inability to raise additional
funds on a timely basis will make it difficult for us to achieve our business plan and will have a material adverse effect on our business, financial condition and results of operations.
We Have Significant International Sales and Are Subject to Risks Associated with Operating in International Markets.
In the past few years, international sales have comprised a significant portion of our net sales. Our international sales declined in 2001, and have not increased in 2002,
and political and economic conditions outside the United States could make it difficult for us to increase our international sales or to operate abroad. In addition, in January 2002, we made a significant investment in a production facility in
Germany to manufacture and service devices to be sold in Europe.
In the future, we intend to continue to pursue
and expand our international business activities. International operations, including our production facility in Germany, are subject to many inherent risks, including:
•
political, social and economic instability and increased security concerns;
•
fluctuations in currency exchange rates;
•
exposure to different legal standards;
•
reduced protection for our intellectual property in some countries;
•
burdens of complying with a variety of foreign laws;
•
import and export license requirements and restrictions of the United States and each other country in which we operate;
•
trade restrictions;
•
the imposition of governmental controls;
•
unexpected changes in regulatory or certification requirements;
•
changes in tariffs;
•
difficulties in staffing and managing international operations;
•
longer collection periods and difficulties in collecting receivables from foreign entities; and
•
potentially adverse tax consequences.
We believe that international sales will continue to represent a significant portion of our net sales, and that continued growth and profitability may require further expansion of our international
operations. A substantial percentage of our international sales are denominated in the local currency. As a result, an increase in the relative value of the dollar could make our products more expensive and potentially less price competitive in
international markets. Other than a forward contract to offset the risk related to the amounts payable for the German production facility, we do not currently engage in any additional transactions as a hedge against risks of loss due to foreign
currency fluctuations. Any of these factors may adversely affect our future international sales and, consequently, affect our business, financial condition and operating results.
If We Are Not Successful in Generating Revenue from Our German Production Facility, Our Business and
Financial Condition May Be Materially Adversely Affected.
In January 2002, we committed to invest a
significant amount of our available cash in purchasing a German production facility with ten employees and various contracts held by the facility. The production facility is a new operation and we will face significant challenges in integrating it
with our existing business and operations, including but not limited to the following:
•
entering into service agreements for devices sold in Europe;
•
retraining existing employees in our operations, and hiring additional employees for the facility;
•
integrating the facility’s operations with our existing operations; and
•
generating German facility revenue and achieving profitability.
The German facility has a very limited operating history upon which to assess whether it will be able to meet all of the challenges required to successfully operate and
generate revenue. If we are not able to develop a successful operation with revenue and profits at the German facility, we will not receive the anticipated benefits of our investment in the German facility and our business, financial condition and
results of operations would be materially and adversely affected.
We are Exposed to Risks Associated with the Recent Worldwide
Economic Slowdown and Related Uncertainties.
Concerns about decreased consumer confidence, reduced corporate
profits and capital spending, and recent international conflicts and terrorist and military activity have resulted in a downturn in economic conditions, both domestically and internationally. These unfavorable economic conditions could ultimately
cause a slowdown in customer orders, an increase in the number of cancellations and the rescheduling of backlog, if any. In addition, recent political and social turmoil related to international conflicts and terrorist acts may put further pressure
on economic conditions in the U.S. and worldwide. Unstable political, social and economic conditions make it difficult for our customers, our suppliers and us to accurately forecast and plan future business activities. If such conditions continue or
worsen, our business, financial condition and results of operations could be materially and adversely affected.
If We Are Unable to
Protect Our Intellectual Property Rights, Our Competitive Position Could Be Harmed or We Could Be Required to Incur Expenses to Enforce Our Rights.
Our success will depend, in part, on our ability to obtain patent protection for our products and technology, to preserve our trade secrets and to operate without infringing the intellectual property
of others. We rely on patents to establish and maintain proprietary rights in our technology and products. However, we cannot assure you that we will be able to obtain any further patents, that any of our proprietary rights will not be challenged,
invalidated or circumvented, or that any such rights will provide a sustainable competitive advantage. Competitors may claim that we have infringed their current or future intellectual property rights. We may not prevail in any future intellectual
property infringement litigation given the complex technical issues and inherent uncertainties in litigation. Any claims, with or without merit, could be time-consuming and distracting to management, result in costly litigation, cause product
shipment delays, or require us to enter into royalty or licensing agreements. Additionally, in the event an intellectual property claim against us is successful, we might not be able to obtain a license on acceptable terms or license a substitute
technology or redesign our products to avoid infringement. Any of the foregoing adverse events could seriously harm our business, financial condition and results of operations.
Product Liability Claims Against Us Could Be Costly and Could Harm Our Reputation.
The sale of dental and medical products involves the inherent risk of product liability claims against us. While we currently maintain product liability insurance coverage in an amount that we believe is adequate for
our level of sales, this insurance is expensive, is subject to various coverage exclusions and may not be obtainable in the future on terms acceptable to us, or at all. We do not know whether
claims against us, if any, with respect to our products will be successfully defended or whether our insurance will be sufficient to cover liabilities resulting from such claims.
Rapid Changes in Technology Could Harm the Demand for Our Products or Result in Significant Additional Costs.
The markets in which our laser products compete are subject to rapid technological change, evolving industry standards, changes in the regulatory environment, frequent new
device and pharmaceutical introductions and evolving dental and surgical techniques. These changes could render our products noncompetitive or obsolete. The success of our existing and future products is dependent on the differentiation of our
products from those of our competitors, the timely introduction of new products and the perceived benefit to the customer in terms of patient service and return on investment. The process of developing new medical devices is inherently complex and
requires regulatory approvals or clearances that can be expensive, time-consuming and uncertain. We have in the past experienced delays in product development. We cannot assure you that we will successfully identify new product opportunities, be
financially or otherwise capable of the research and development to bring new products to market in a timely manner or that product and technologies developed by others will not render our products obsolete.
We May Not Be Able to Compete Successfully Against Our Current and Future Competitors.
Our products compete with those of a number of foreign and domestic companies, including those companies that market traditional dental products such as dental drills, as
well as other companies that market laser technologies in the dental and medical markets that we address. Some of our competitors have greater financial, technical, marketing or other resources than us. This may allow them to respond more quickly to
new or emerging technologies and to devote greater resources to the development and introduction of enhanced products than we can. In addition, the rapid technological changes occurring in the healthcare industry are expected to lead to the entry of
new competitors, especially as dental and medical lasers gain increasing market acceptance. Our ability to anticipate technological changes and to introduce enhanced products on a timely basis will be a significant factor in our ability to grow and
remain competitive. New competitors or technology changes in laser products and methods could cause commoditization of such products, require price discounting or otherwise adversely affect our gross margins.
Changes in Government Regulation or the Inability to Obtain Necessary Government Approvals Could Harm Our Business.
Our products are subject to extensive government regulation, both in the United States and other countries. To clinically test,
manufacture and market products for human diagnostic and therapeutic use, we must comply with regulations and safety standards set by the U.S. Food and Drug Administration and comparable state and foreign agencies. Generally, products must meet
regulatory standards as safe and effective for their intended use prior to being marketed for human applications. The clearance process is expensive, time-consuming and uncertain. The failure to receive requisite approvals for the use of our
products or processes, or significant delays in obtaining such approvals, could prevent us from developing, manufacturing and marketing products and services necessary for us to remain competitive.
If Our Customers Cannot Obtain Third Party Reimbursement for Their Use of Our Products, They May Be Less Inclined to Purchase Our Products.
Our products are generally purchased by dental or medical professionals who then bill various third party payors, such as
government programs or private insurance plans, for the procedures conducted using these
products. In the United States third party payors review and frequently challenge the prices charged for medical services. In many foreign countries, the prices are predetermined through
government regulation. Payors may deny coverage and reimbursement if they determine that the procedure was not medically necessary (for example, cosmetic) or that the device used in the procedure was investigational. We believe that most of the
procedures being performed with our current products generally have been reimbursed, with the exception of cosmetic applications such as tooth whitening. The inability to obtain reimbursement for services using our products could deter dentists and
physicians from purchasing or using our products. We cannot predict the effect of future healthcare reforms or changes in financing for health and dental plans. Any such changes could have an adverse effect on the ability of a dental or medical
professional to generate a return on investment using our current or future products. Such changes would act as disincentives for capital investments by dental and medical professionals and could have an adverse effect on our business, financial
condition and results of operations.
The Failure to Attract and Retain Key Personnel Could Adversely Affect Our Business.
Our future success depends in part on the continued service of certain key personnel, including Jeffrey W.
Jones, our Chief Executive Officer, Edson J. Rood, our Chief Financial Officer, Ioana Rizoiu, our Vice President of Clinical Research, and Keith Bateman, our Vice President of Global Sales. We do not have employment agreements with any of our key
employees, other than with Mr. Jones, whose employment agreement was renewed in January 2002 for an additional two-year term.
Our success will also depend in large part on our ability to continue to attract, retain and motivate qualified engineering and other highly skilled technical personnel. Competition for employees, particularly development engineers,
is intense. We may not be able to continue to attract and retain sufficient numbers of such highly skilled employees. Our inability to attract and retain additional key employees or the loss of one or more of our current key employees could
adversely affect our business, financial condition and results of operations.
Potential Future Acquisitions Could Have Unintended
Negative Consequences Which Could Harm Our Business and Cause Our Stock Price to Decline.
We may consider
pursuing acquisitions of businesses, products or technologies in the future as a part of our growth strategy. Acquisitions could require significant capital infusions and could involve many risks, including but not limited to the following:
•
We may encounter difficulties in assimilating and integrating the operations, products and workforce of the acquired companies;
•
Acquisitions may materially and adversely affect our results of operations because they may require large one-time charges or could result in increased debt or
contingent liabilities, adverse tax consequences, substantial depreciation or deferred compensation charges, or the amortization of amounts related to deferred compensation, goodwill and other intangible assets;
•
Acquisitions may be dilutive to our existing stockholders;
•
Acquisitions may disrupt our ongoing business and distract our management; and
•
Key personnel of the acquired company may decide not to work for us.
We cannot assure you that we will be able to identify or consummate any future acquisitions on acceptable terms, or at all. In the event we do pursue any acquisitions, it
is possible that we may not realize the anticipated benefits from such acquisitions.
We May Not Be Able to Continue or Increase Our
Net Income in the Future, Which May Cause the Trading Price of Our Common Stock to Decline.
We may not be
able to continue to achieve net income. Prior to the third and fourth quarters of 2001, we had not reached the break-even point as we transitioned from our research and development phase and began
commercializing our technology. Even if we continue to achieve net income, we may not be able to increase net income on a quarterly or annual basis in the future. Our ability to achieve sustained
or increased net income is, in turn, dependent on many of the other risk factors identified in this report below. If we are unable to continue or increase our net income in the future, we may not be able to successfully operate our business and our
stock price may decline.
Our Common Stock Price Has Been Volatile, Which Could Result in Substantial Losses for Individual
Stockholders.
Our common stock recently was listed and began trading on the Nasdaq National Market and has
only limited daily trading volume. Our common stock previously traded on the Nasdaq SmallCap Market. The trading price of our common stock has been and may continue to be volatile. The market for technology companies, in particular, has, from time
to time, experienced extreme volatility that often has been unrelated to the operating performance of particular companies. These broad market and industry fluctuations may significantly affect the trading price of our common stock, regardless of
our actual operating performance. For example, the closing per share sale price of our common stock fluctuated from $6.80 to $1.53 during 2001 despite steady improvement in our financial performance. On August 9, 2001, the closing sale price of our
common stock declined 12% from $5.87 per share on volume of approximately 900,000 shares, absent any news about or announcements by us. The trading price of our common stock could be affected by a number of factors, including, but not limited to,
changes in expectations of our future performance, changes in estimates by securities analysts (or failure to meet such estimates), quarterly fluctuations in our revenue and financial results and a variety of risk factors, including the ones
described elsewhere in this report. Periods of volatility in the market price of a company’s securities sometimes result in securities class action litigation. If this were to happen to us, such litigation would be expensive and would divert
management’s attention. In addition, with only a limited public market for our stock, it would be difficult to sell a significant amount of our stock, which could cause a significant decline in the trading price of our stock. If our stock price
drops below $3.00 per share for an extended period of time or we are otherwise unable to satisfy the continued listing requirements of the Nasdaq National Market, our shares could be delisted from the Nasdaq National Market and the marketability,
liquidity and price of our common stock would be adversely affected.
The Common Stock Sold in This Offering Will Increase the Supply
Of Our Common Stock On the Public Market, Which May Cause Our Stock Price to Decline.
The sale into the
public market of the common stock to be sold in this offering could materially and adversely affect the market price of our common stock. Most of the shares of our common stock are eligible for immediate and unrestricted sale in the public market at
any time. Once the registration statement of which this prospectus forms a part is declared effective, all shares of common stock to be sold in this offering will be eligible for immediate and unrestricted resale into the public market. The presence
of these additional shares of common stock in the public market may further depress our stock price.
Investors in This Offering Will
Suffer Immediate Dilution.
As of March 31, 2002, we had a net tangible book value of approximately $0.12 per
share of common stock. Net tangible book value per share is equal to our total tangible assets minus total liabilities divided by the number of shares of common stock outstanding. Our net tangible book value per share is substantially less than the
current market price per share of our common stock. If you pay more than the net tangible book value per share for common stock in this offering, you will suffer immediate and substantial dilution.
We May Issue Stock at a Discount to the Current Market Price, Which Would Dilute Our Existing Stockholders.
In order to raise the funds we require to execute our business plan and fund operations generally, we may continue to issue stock at a
discount to the current market price. Transactions of that kind would result in dilution to our existing stockholders.
Future Sales of Our Common Stock Could Affect the Stock Price.
If our stockholders sell substantial amounts of our common stock, including shares issued on the exercise of options and warrants, in the
public market, the market price of our common stock could fall. These sales also might make it more difficult for us to sell equity or equity-related securities in the future at a time and price that we deem appropriate. As of May 31, 2002, we had
20,027,948 shares of common stock outstanding. All of these shares, other than shares held by affiliates, are freely tradable.
We
Have Adopted Anti-Takeover Defenses That Could Delay or Prevent an Acquisition of Our Company and May Affect the Price of Our Common Stock.
Certain provisions of our certificate of incorporation and stockholder rights plan could make it difficult for a third party to acquire us, even though an acquisition might be beneficial to our
stockholders. These provisions could limit the price that investors might be willing to pay in the future for shares of our common stock.
Our certificate of incorporation authorizes the issuance of up to 1,000,000 shares of “blank check” preferred stock, which will have terms as may be determined from time to time by our Board of Directors.
Accordingly, our Board of Directors may, without obtaining stockholder approval, issue preferred stock with terms which could have preference over and adversely affect the rights of the holders of common stock. This issuance may make it more
difficult for a third party to acquire a majority of our outstanding voting stock. We are also subject to the Delaware anti-takeover laws which may prevent, delay or impede a merger or takeover of our company, and we have not opted out of the
provisions of such laws through either our certificate of incorporation or our bylaws.
In December 1998, we
adopted a stockholder rights plan pursuant to which one preferred stock purchase right is distributed to our stockholders for each share of our common stock held by them. In the event that a third party acquires 15% or more of our outstanding common
stock, the holders of these rights will be able to purchase the underlying junior participating preferred stock as a way to discourage, delay or prevent a change in control of our company. The mere existence of a stockholder rights plan often delays
or makes a merger, tender offer or proxy contest more difficult. The existence of these features could prevent others from seeking to acquire shares of our common stock in transactions at premium prices.
FORWARD-LOOKING STATEMENTS
This prospectus, together with all other information
included in or incorporated by reference into this prospectus, contains forward-looking statements that are not historical facts but rather are based upon our current expectations, estimates, assumptions and projections about our industry and
reflect management’s beliefs based upon information available to us at the time of this prospectus. Words such as “anticipates,”“expects,”“intends,”“plans,”“believes,”“seeks,”“estimates,”“may,”“will,” and variations of these words or similar expressions are intended to identify forward-looking statements. These forward-looking statements are not guarantees of future performance and are
subject to risks, uncertainties, assumptions and other factors that are difficult to predict and could cause our actual results to differ materially and adversely from those expressed in any forward-looking statements. These risks and uncertainties
include those described under “Risk Factors” and elsewhere in this prospectus, together with all other information included or incorporated by reference into this prospectus, and include but are not limited to the following:
•
Uncertainties relating to worldwide political stability, general economic conditions and trade policies;
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Uncertainties relating to government and regulatory policies;
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Unforeseen technological developments by competitors;
The availability and pricing of materials used in the manufacture of our products;
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Uncertainties relating to the development, ownership and enforcement of intellectual property rights;
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Adverse changes in the financing of commercial health and dental plans;
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Adverse changes in the financial markets affecting the availability and cost of capital;
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The impact of natural disasters, including a major earthquake, on our operations; or
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The ability to attract and retain qualified personnel to grow and compete effectively.
Forward-looking statements that were true at the time made may ultimately prove to be incorrect or false. Readers are cautioned not to place undue reliance on
forward-looking statements, which reflect our management’s view only as of the date of this prospectus. We undertake no obligation to revise or update publicly any forward-looking statements for any reason.
The information contained in this prospectus is not a complete description of our business or the risks associated with an investment in
our common stock. We urge you to carefully review and consider the various disclosures made by us in our reports and other filings with the Securities and Exchange Commission.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports,
proxy statements and other information with the Securities and Exchange Commission. You may read and copy any document we file with the SEC at the SEC’s Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the
SEC at 1-800-SEC-0330 for further information on the Public Reference Room. Our SEC filings are also available to the public at the SEC’s web site at http://www.sec.gov.
This prospectus is part of a registration statement on Form S-3 that we filed with the SEC. Pursuant to the SEC rules, this prospectus, which forms a part of the
registration statement, does not contain all of the information in the registration statement. You may read or obtain a copy of the registration statement from the SEC in the manner described above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by
reference into this prospectus the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this
prospectus, and information that we file later with the SEC will automatically update and supersede this information. The documents we incorporate by reference are:
2. Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2002 filed with the SEC on May 15, 2002;
3. Our Definitive Proxy Statement filed with the SEC on April 22, 2002 in connection
with our 2002 Annual Meeting of Stockholders held on May 23, 2002;
4. The description
of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on October 30, 1991, including any amendment or report filed for the purpose of updating such description; and
5. The description of our preferred stock purchase
rights contained in our Registration Statement on Form 8-A filed with the SEC on December 29, 1998, including any amendment or report filed for the purpose of updating such description.
In addition, we incorporate by reference all reports and other documents that we file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934, as amended, after the date of this prospectus and prior to the termination of this offering, and all such reports and documents will be deemed to be incorporated by reference in this prospectus and to be a part of this prospectus from the
date of filing of such reports and documents. Any statement contained in a document incorporated by reference in this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in
this prospectus or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this prospectus.
We will provide without charge to each person
to whom this prospectus is delivered, upon written or oral request of such person, a copy of any or all of the foregoing documents incorporated by reference in this prospectus but not delivered with the prospectus. Requests for copies of these
documents should be submitted in writing to Investor Relations, at BioLase Technology, Inc., 981 Calle Amanecer, San Clemente, California92673, or by telephone at (949) 361-1200.
The following table sets forth the names of the selling
stockholders, the number of shares being registered for sale as of the date of this prospectus and the number of shares of common stock known by us to be beneficially owned by each of the selling stockholders as of May 31, 2002. We are unable to
determine the exact number of shares that actually will be sold because the selling stockholders may sell all or some of the shares and because there currently are no agreements, arrangements or understandings with respect to the sale of any of the
shares. The following table assumes that the selling stockholders will sell all of the shares being offered for their account by this prospectus. The shares offered by this prospectus may be offered from time to time by the selling stockholders. The
selling stockholders are not making any representation that any shares covered by this prospectus will or will not be offered for sale. The selling stockholders reserve the right to accept or reject, in whole or in part, any proposed sale of shares.
The selling stockholders also may offer and sell less than the number of shares indicated.
Number of Shares Beneficially Owned Prior to Offering
Number of Shares Being Offered in Offering
Beneficially Owned
After
Offering
Name of Selling Stockholder
Number of Shares
Percent of Outstanding Shares
CBG Compagnie Bancaire Geneve(1)
480,000
160,000
320,000
1.6
%
Corner Bank Ltd.(2)
360,000
360,000
—
—
Corner Banque S.A.(3)
105,000
105,000
—
—
GEM Holdings Corp.(4)
566,400
256,600
309,800
1.5
%
Triglova Finance S.A.(5)
62,500
62,500
—
—
Total
1,573,900
944,100
629,800
3.0
%
(1)
Includes 160,000 shares of common stock subject to warrants which are immediately exercisable.
(2)
Includes 260,000 shares of common stock subject to warrants which are immediately exercisable.
(3)
Includes 40,000 shares of common stock subject to warrants which are immediately exercisable.
(4)
Includes 200,000 shares of common stock subject to warrants which are immediately exercisable.
(5)
Includes 62,500 shares of common stock subject to warrants which are immediately exercisable for our common stock at a price per share of $2.50 and which expire
in September 2002. The warrants were originally issued to Eurocapital Limited, which acted as our agent for the private placement completed in March 2000, but were subsequently transferred by Eurocapital Limited to Triglova Finance S.A. in May 2001.
Our Chairman of the Board, Federico Pignatelli, has in the past acted as an agent of Eurocapital Limited, but has no current relationship, financial or otherwise, with Eurocapital Limited. Mr. Pignatelli disclaims beneficial ownership of the shares
that were transferred by Eurocapital Limited and that are being offered by Triglova Finance S.A.
The information provided above is based upon information provided by each respective selling stockholder and public documents filed with the SEC and is not necessarily indicative of beneficial ownership for any other purpose. The
number of shares of common stock beneficially owned and used to calculate the percentage beneficial ownership of each listed stockholder includes the shares of common stock underlying warrants or preferred stock held by such stockholder that are
exercisable or convertible within 60 days of May 31, 2002. The term “selling stockholders” includes the stockholders listed below and their transferees, assignees, pledgees, donees or other successors. The percent of beneficial ownership
for each stockholder is based on 20,027,948 shares of our common stock outstanding as of May 31, 2002. Except as indicated in this prospectus, we are not aware of any material relationship between us and any selling stockholder within the past three
years other than as a result of the ownership of the selling stockholders’ shares.
CBG Compagnie Bancaire
Geneve, Corner Bank Ltd. and Corner Banque S.A. acquired their beneficial ownership of 625,000 shares offered by this prospectus, in connection with a private placement completed in
March 2000, in which we issued and sold 125 units to them. Each unit was sold at a price per unit of $21,775 and consisted of 10,000 shares of our common stock and an immediately exercisable
redeemable warrant that expires in September 2002, to purchase 5,000 shares of our common stock at a price per share of $2.50.
We may redeem, at a cash price per warrant of $0.01, all of the warrants held by CBG Compagnie Bancaire Geneve, Corner Bank Ltd., Corner Banque S.A. and Triglova Finance S.A., provided that the closing price per share of our common
stock has equaled or exceeded $5.00 for the 20 trading days preceding the call for redemption. In March 2002, Corner Bank Ltd. and Corner Banque S.A. partially exercised their warrants and purchased 100,000 shares and 65,000 shares, respectively, of
our common stock at a price per share of $2.50.
In connection with the March 2000 private placement of shares of
our common stock including warrants to purchase shares of our common stock, we agreed to prepare and file with the Securities and Exchange Commission a registration statement on Form S-3, of which this prospectus forms a part, for the purpose of
registering such shares for resale from time to time by the selling stockholders. We also agreed to prepare and file any amendments and supplements to the registration statement as may be necessary to keep the registration statement continuously
effective in order to permit this prospectus to be usable by the selling stockholders until the earlier of the date when the selling stockholders have sold all of the placement shares or two years from the date of the last exercise of a warrant
issued in the placement.
Beginning in December 1999, we have entered into extension agreements with GEM Holdings
Corp., pursuant to which GEM has agreed to continue to guarantee all obligations due under our bank credit facility. Pursuant to these agreements, we have issued three warrants to GEM, one to purchase an aggregate of 50,000 shares of our common
stock at an exercise price per share of $3.00 that expires in December 2002, another to purchase an aggregate of 50,000 shares of our common stock at an exercise price per share of $3.00 that expires in May 2003 and another to purchase an aggregate
of 100,000 shares of our common stock at an exercise price per share of $2.00 that expires in December 2003. Pursuant to our agreements with GEM, we granted “piggyback” registration rights that obligate us to include the shares
beneficially owned by GEM in any registration statement that we file with the SEC on which it would be appropriate to register shares for resale, until such time as the shares held by GEM may be sold pursuant to exemptions from the registration
requirements of the Securities Act.
This prospectus also covers any additional shares of common stock which
become issuable in connection with the shares being registered by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of
our outstanding shares of common stock. In addition, this prospectus covers the preferred stock purchase rights which currently trade with the common stock and entitle the holder to purchase additional shares of common stock under certain
circumstances.
USE OF PROCEEDS
The shares of common stock offered by this prospectus will be sold by
the selling stockholders, and the selling stockholders will receive all of the proceeds from sales of those shares. Accordingly, we will not receive any of the proceeds from sales of the shares offered by this prospectus. However, we could receive
proceeds of up to $1,806,250 if the warrants are exercised by the selling stockholders, and those proceeds will be used for our general corporate purposes. See “Selling Stockholders” on pages 12-13.
PLAN OF DISTRIBUTION
We are registering all 944,100 shares of common stock (and
associated purchase rights) covered by this prospectus on behalf of the selling stockholders. This amount includes 221,600 shares of common stock and
722,500 shares of common stock issuable upon exercise of immediately exercisable warrants to purchase common stock, acquired by certain selling stockholders in March 2000 pursuant to a private
placement and by the remaining selling stockholder pursuant to certain service agreements with us. We will not receive any of the proceeds from sales of the shares by the selling stockholders. However, we will receive proceeds from the exercise of
the warrants and those proceeds will be used for our general corporate purposes.
The selling stockholders named
in this prospectus, or pledgees, donees, transferees or other successors-in-interest selling shares received from the selling stockholders as a gift, partnership distribution or other non-sale related transfer after the date of this prospectus may
sell these shares from time to time. The selling stockholders will act independently of us in making decisions with respect to the timing, manner and size of each sale. The sales may be made on one or more exchanges or in the over-the-counter market
or otherwise, at prices and at terms then prevailing or at prices related to the then current market price or in negotiated transactions. The selling stockholders may effect such transactions by selling the shares to or through broker-dealers. The
shares may be sold by one or more of, or a combination of, the following:
•
a block trade in which the broker-dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the block as principal to
facilitate the transaction;
•
purchases by a broker-dealer as principal and resale by such broker-dealer for its account under this prospectus;
•
an exchange distribution in accordance with the rules of such exchange;
•
ordinary brokerage transactions and transactions in which the broker solicits purchasers; or
•
privately negotiated transactions.
To the extent required, this prospectus may be amended or supplemented from time to time to describe a specific plan of distribution. In effecting sales, broker-dealers engaged by the selling
stockholders may arrange for other broker-dealers to participate in such resales.
The selling stockholders may
enter into hedging transactions with broker-dealers in connection with distributions of the shares or otherwise. In such transactions, broker-dealers may engage in short sales of the shares in the course of hedging the positions they assume with the
selling stockholders. The selling stockholders also may sell shares short and redeliver the shares to close out such short positions. The selling stockholders may enter into option or other transactions with broker-dealers which require the delivery
to the broker-dealer of the shares. The broker-dealer may then resell or otherwise transfer such shares under this prospectus. The selling stockholders also may loan or pledge the shares to a broker-dealer. The broker-dealer may sell the shares so
loaned, or upon a default the broker-dealer may sell the pledged shares under this prospectus.
Broker-dealers or
agents may receive compensation in the form of commissions, discounts or concessions from the selling stockholders. Broker-dealers or agents may also receive compensation from the purchasers of the shares for whom they act as agents or to whom they
sell as principals, or both. Compensation as to a particular broker-dealer might be in excess of customary commissions and will be in amounts to be negotiated in connection with the sale. Broker-dealers or agents and any other participating
broker-dealers or the selling stockholders may be deemed to be “underwriters” within the meaning of Section 2(11) of the Securities Act of 1933, as amended, in connection with sales of the shares. Accordingly, any such commission, discount
or concession received by them and any profit on the resale of the shares purchased by them may be deemed to be underwriting discounts or commissions under the Securities Act. Because the selling stockholders may be deemed to be
“underwriters” within the meaning of Section 2(11) of the Securities Act, the selling stockholders will be subject to the prospectus delivery requirements of the Securities Act.
In addition, any securities covered by this prospectus which qualify for sale under Rule 144 promulgated under the Securities Act may be sold under Rule 144 rather than
under this prospectus. The selling stockholders have advised us that they have not entered into any agreements, understandings or arrangements with any
underwriters or broker-dealers regarding the sale of their securities. There is no underwriter or coordinating broker acting in connection with the proposed sale of shares by the selling
stockholders.
The shares will be sold only through registered or licensed brokers or dealers if required under
applicable state securities laws. In addition, in certain states the shares may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is
available and is complied with.
Under applicable rules and regulations under the Securities Exchange Act of 1934,
as amended, any person engaged in the distribution of the shares may not engage in market-making activities with respect to our common stock during certain restricted periods. In addition, each selling stockholder will be subject to applicable
provisions of the Securities Exchange Act and the associated rules and regulations under the Securities Exchange Act, including Regulation M, which provisions may limit the timing of purchases and sales of shares of our common stock by the selling
stockholders. We will make copies of this prospectus available to the selling stockholders and have informed them of the need for delivery of copies of this prospectus to purchasers at or prior to the time of any sale of the shares.
We will file a supplement to this prospectus, if required, pursuant to Rule 424(b) under the Securities Act upon being notified
by a selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of shares through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer.
Such supplement will disclose:
•
the name of each such selling stockholder and of the participating broker-dealer(s),
•
the number of shares involved,
•
the price at which such shares were sold,
•
the commissions paid or discounts or concessions allowed to such broker-dealer(s), where applicable,
•
that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus, and
•
other facts material to the transaction.
In addition, upon being notified by a selling stockholder that a donee or pledgee intends to sell more than 500 shares, we will file a supplement to this prospectus.
We will bear all costs, expenses and fees in connection with the registration of the shares. The selling stockholders will bear all
commissions and discounts, if any, attributable to their respective sales of the shares. The selling stockholders may agree to indemnify any broker-dealer or agent that participates in transactions involving sales of the shares against certain
liabilities, including liabilities arising under the Securities Act.
LEGAL MATTERS
The validity of the common stock offered in this prospectus and certain
other legal matters will be passed upon for us by Brobeck, Phleger & Harrison LLP, Irvine, California.
EXPERTS
Our financial statements as of December 31, 2001 and 2000 and for each of the
years in the three year period ended December 31, 2001incorporated by reference in this prospectus and related registration statement have been so included in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on
the authority of said firm as experts in auditing and accounting.
Item 14. Other Expenses of Issuance
and Distribution
The following table sets forth the various costs and expenses to be paid by the
Registrant with respect to the sale and distribution of the securities being registered. All of the amounts shown are estimates except for the SEC registration fee. In addition, the Registrant may be charged additional listing fees by the Nasdaq
National Market upon issuance of the shares being offered by this prospectus.
SEC Registration Fee
$
436.02
Printing Expenses
6,000.00
Legal Fees and Expenses
10,500.00
Accounting Fees and Expenses
5,000.00
Transfer Agent Fees and Expenses
700.00
Total
$
22,636.02
The Registrant will bear all costs, expenses and fees in connection
with the registration of the shares. The selling stockholders will bear all commissions and discounts, if any, attributable to the sales of the shares.
Item 15. Indemnification of Directors and Officers
The Registrant’s Certificate of Incorporation, as amended, provides that the Registrant’s directors will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except for liability
for (i) any breach of their duty of loyalty to the Registrant or its stockholders, (ii) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) unlawful payments of dividends or unlawful stock
repurchases or redemptions as provided in Section 174 of the General Corporation Law of the State of Delaware (the “Delaware Law”), or (iv) any transaction from which the director derives an improper personal benefit.
Article X of the Registrant’s Amended and Restated Bylaws provides that the Registrant will indemnify any director or
officer, or former director or officer, who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, to the fullest extent authorized by
the Delaware Law, against all costs, charges, expenses, liabilities and losses (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered in
connection with such action, suit or proceeding. The Registrant also will indemnify any such director or officer, or any such former director or officer, against expenses incurred in defending any such action, suit or proceeding in advance of its
final disposition, provided that, if required by the Delaware Law, the payment of such expenses will be made only upon delivery to the Registrant of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it
shall ultimately be determined that such director or officer is not entitled to be indemnified.
Article X of the
Registrant’s Amended and Restated Bylaws further provides that in the event a director or officer has to bring suit against the Registrant for indemnification and is successful, the Registrant will pay such director’s or officer’s
expenses of prosecuting such claim; that indemnification provided for by the Amended and Restated Bylaws shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; that the Registrant may purchase and maintain
insurance on behalf of a director or officer against any expense, liability or loss, whether or not the Registrant would have the power to indemnify such director or officer against such expense, liability or loss under the Delaware Law; and that to
the extent any director or officer is by reason of such position a witness in any action, suit or proceeding, the Registrant shall indemnify
him or her against all costs and expenses actually and reasonably incurred by him or her in connection therewith.
The Registrant’s employment agreement with its President and Chief Executive Officer, Jeffrey W. Jones, provides that the Registrant will, to the maximum extent
permitted under the Delaware Law, indemnify Mr. Jones against any expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding,
whether civil, criminal, administrative or investigative, threatened or initiated against Mr. Jones by reason of the fact that he was serving as a director or officer.
Section 145 of the Delaware Law provides that a Delaware corporation has the power to indemnify its directors and officers in certain circumstances.
Subsection (a) of Section 145 of the Delaware Law empowers a corporation to indemnify any director or officer, or former
director or officer, who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of
the corporation), against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding provided that such director or officer acted in
good faith and in a manner such director or officer reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, provided that such director or officer had no
reasonable cause to believe his or her conduct was unlawful.
Subsection (b) of Section 145 of the Delaware Law
empowers a corporation to indemnify any director or officer, or former director or officer, who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of
such action or suit, provided that such director or officer acted in good faith and in a manner such director or officer reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made
in respect of any claim, issue or matter as to which such director or officer shall have been 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 that despite the adjudication of liability, but in view of all the circumstances of the case, such director or officer is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Section 145 of the Delaware Law further provides that to the extent a director or officer of a corporation has been successful
in the defense of any action, suit or proceeding referred to in subsections (a) and (b) or in the defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably
incurred by him or her in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and that the corporation shall have power to purchase
and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against him or her or incurred by him or her in any such capacity or arising out of his or her status as such whether or not the corporation
would have the power to indemnify him or her against such liabilities under Section 145.
The Registrant maintains
directors’ and officers’ liability insurance covering its directors and officers.
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date
of this registration statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in
the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of
determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, 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 that is incorporated by reference into this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
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 foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC 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.
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 to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Clemente, State of California, on the 3rd day of June, 2002.
Each person whose signature appears below constitutes and appoints Jeffrey W. Jones and Edson J. Rood, jointly and severally, as
attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign any amendment to this Registration Statement and to file the same, with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to said attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and
purposes as he might or could do in person hereby ratifying and confirming all that said attorneys-in-fact or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature
Title
Date
/s/ JEFFREY W. JONES
Jeffrey W. Jones
President and Chief Executive Officer and Director (principal executive officer)