Pre-Effective Amendment to Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3 Filing Table of Contents
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‘S-3/A’ — Pre-Effective Amendment to Registration Statement for Securities Offered Pursuant to a Transaction Document Table of Contents
(Address, including zip code,
and telephone number, including area code, of principal
executive offices)
Federico Pignatelli
Chairman and Chief Executive Officer
Biolase Technology, Inc.
4 Cromwell
Irvine, California92618
(949) 361-1200 (Name, address,
including zip code and telephone number, including area code, of
agent for service)
With a copy of all
communications and notices to:
Michael C. Carroll, Esq.
Carroll & Carroll, P.C.
18101 Von Karman Avenue, Suite 330 Irvine, California92612
(949) 340-7375
Approximate date of commencement of proposed sale to the
public: From time to time after this registration statement
becomes effective.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
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, please 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
of 1933, please check the following box and list the Securities
Act registration statement number of the earlier effective
registration statement for the same
offering. o
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act of 1933, check the
following box and list the Securities Act registration number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act of 1933, check the
following
box. o
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act
of 1933, check the following
box. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
“large accelerated filer,”“accelerated
filer” and “smaller reporting company” in
Rule 12b-2
of the Exchange Act. (Check one):
Large accelerated filer o
Accelerated filer o
Non-accelerated filer o
Smaller reporting company þ
(Do not check if a smaller reporting company)
CALCULATION
OF REGISTRATION FEE
Proposed Maximum
Proposed Maximum
Amount of
Title of Each Class of
Amount to be
Offering
Aggregate
Registration
Securities to be Registered
Registered(1)
Price per Unit(2)
Offering Price(2)
Fee(2)
Common Stock ($0.001 par value)
1,625,947
$
4.63
(2)
$
7,528,135
(2)
$
874
(2)(4)
Common Stock ($0.001 par value) issuable upon exercise of
warrants
722,973
$
6.50
(3)
$
4,699,325
(3)
$
546
(3)(4)
(1)
This registration statement also
shall cover an indeterminate number of additional shares of
common stock and common stock issuable upon exercise of
warrants, as may become issuable pursuant to Rule 416 under the
Securities Act of 1933, in order to prevent dilution in the
event of a stock split, stock dividend, or other similar
transaction.
(2)
Estimated solely for purposes of
calculating the registration fee pursuant to Rule 457(c)
under the Securities Act of 1933. The proposed maximum offering
price per unit, the proposed maximum aggregate offering price
and the amount of the registration fee have been computed on the
basis of the average of the high and low prices of the Biolase
Technology, Inc. common stock as reported on the NASDAQ Capital
Market on July 12, 2011.
(3)
Estimated solely for purposes of
calculating the registration fee pursuant to Rule 457(g)(1)
under the Securities Act. The proposed maximum offering price
per unit, the proposed maximum aggregate offering price, and the
amount of registration fee have been computed on the basis of
the $6.50 exercise price per share that may be acquired by the
selling stockholders named in this registration statement upon
exercise of warrants.
(4)
Fee previously paid.
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
The
information in this prospectus is not complete and may be
changed. We 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 disposition from time to time of
up to 2,348,920 shares of our common stock, which are held
or may be held by the selling stockholders named in this
prospectus. The persons listed as our selling stockholders in
this prospectus are offering and selling up to
1,625,947 shares of our common stock currently owned by
such selling stockholders as well as up to 722,973 shares
of our common stock that may be acquired by such selling
stockholders upon exercise of outstanding warrants. The warrants
are exercisable on or after December 29, 2011 at an
exercise price of $6.50 per share of common stock. We are not
selling any shares of common stock or warrants in this offering
and, therefore will not receive any proceeds from this offering
by the selling stockholders. However, we will receive the
proceeds from the exercise of the warrants by the selling
stockholders, if any, to the extent that the warrants are not
exercised on a cashless or net basis. See the section entitled
“Use of Proceeds” on page five of this prospectus. We
will bear all of the expenses and fees incurred in registering
the shares offered by this prospectus.
The selling stockholders identified in this prospectus, or their
permitted transferees or other
successors-in-interest,
may offer the shares from time to time through public or private
transactions at prevailing market prices, at prices related to
prevailing market prices, or at privately negotiated prices. The
selling stockholders may engage brokers or dealers who may
receive commissions or discounts from the selling stockholders.
Any broker-dealer acquiring the common stock from the selling
stockholders may sell these securities in normal market making
activities, through other brokers on a principal or agency
basis, in negotiated transactions, to its customers or through a
combination of methods. We provide more information about how
the selling stockholders may sell its shares of common stock in
the section entitled “Plan of Distribution” beginning
on page 5 of this prospectus. We will not be paying any
underwriting discounts or commissions in connection with any
offering of common stock under this prospectus.
Our common stock is listed on the NASDAQ Capital Market under
the symbol “BLTI.” On August 17, 2011, the last
reported sale price of our common stock on the NASDAQ Capital
Market was $2.84. Our warrants are not and will not be listed
for trading on any exchange.
Investing in our common stock involves a high degree of risk.
Before buying any of our common stock, you should carefully
consider the risk factors beginning on page 6 of
Part I, Item 1A of our Annual Report on
Form 10-K
for the year ended December 31, 2010 which is incorporated
by reference into this Prospectus, as well those described or
may be described in any subsequent quarterly report on
Form 10-Q
under Part II, Item IA or annual report on
Form 10-K
under Part I, Item 1A incorporated by reference into
this prospectus or related prospectus supplements. You should
consider carefully these risks together with all of the other
information contained in this prospectus and any related
prospectus supplement before making a decision to purchase our
common stock.
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.
We have filed a shelf registration statement on
Form S-3
with the Securities and Exchange Commission (the
“SEC”) covering the shares of common stock offered by
this prospectus. Under this shelf registration process, the
selling stockholder may from time to time, in one or more
offerings, sell the common stock described in this prospectus.
As permitted by the rules and regulations of the SEC, this
prospectus omits certain information, exhibits and undertakings
contained in the registration statement. For further information
pertaining to the shares of common stock offered by this
prospectus, reference is made to the registration statement,
including the exhibits filed as a part thereof.
You should rely only on the information contained in or
incorporated by reference into this prospectus, as supplemented
and amended. We have not authorized anyone to provide you with
different information. This document may only be used where it
is legal to sell these securities. You should not assume that
the information contained in this prospectus is accurate as of
any date other than its date regardless of the time of delivery
of the prospectus or any sale of our common stock.
We urge you to read carefully this prospectus, as supplemented
and amended, together with the information incorporated herein
by reference as described under the heading “Information
Incorporated by Reference,” before deciding whether to
invest in any of the common stock being offered.
This prospectus and the documents incorporated by reference
herein contain forward-looking statements. These statements
involve known and unknown risks, uncertainties and other
important factors that may cause our actual results, performance
or achievements to be materially different from any future
results, performance or achievements expressed or implied by the
forward-looking statements.
These forward-looking statements include, without limitation,
statements, predictions and expectations regarding our earnings,
revenue, sales and operations, operating expenses, anticipated
cash needs, capital requirements and capital expenditures, needs
for additional financing, use of working capital, plans for
future products and services and for enhancements of existing
products and services, anticipated growth strategies, ability to
attract customers, sources of net revenue, anticipated trends
and challenges in our business and the markets in which we
operate, the adequacy of our facilities, the impact of economic
and industry conditions on our customers and our business,
customer demand, our competitive position, the outcome of any
litigation against us, the perceived benefits of any technology
acquisitions, critical accounting policies; and the impact of
recent accounting pronouncements. Additional forward-looking
statements include, but are not limited to, statements
pertaining to other financial items, plans, strategies or
objectives of management for future operations, our financial
condition or prospects, and any other statement that is not
historical fact. Forward-looking statements are often identified
by the use of words such as “may,”“might,”“will,”“intend,”“should,”“could,”“can,”“would,”“continue,”“expect,”“believe,”“anticipate,”“estimate,”“predict,”“potential,”“plan,”“seek” and similar expressions and variations or the
negativities of these terms or other comparable terminology.
These forward-looking statements are based on the expectations,
estimates, projections, beliefs and assumptions of our
management based on information currently available to
management, all of which is subject to change. Such
forward-looking statements are subject to risks, uncertainties
and other factors that are difficult to predict and could cause
actual results to differ materially from those stated or implied
by our forward-looking statements. Factors that could cause or
contribute to such differences include, but are not limited to,
those identified under “Risk Factors” in this
prospectus and our Annual Report on
Form 10-K
for the year ended December 31, 2010, as well as in any
subsequent quarterly report on
Form 10-Q,
which are incorporated herein by reference, and under similar
headings in any supplements to this prospectus. We undertake no
obligation to revise or update publicly any forward-looking
statements to reflect events or circumstances after the date of
such statements for any reason except as otherwise required by
law.
This summary may not contain all of the information that may
be important to you. You should read the entire prospectus (as
supplemented and amended), including the financial data and
related notes, risk factors and other information incorporated
by reference in this prospectus, before making an investment
decision. Unless the context indicates otherwise, as used in
this prospectus, the terms “Biolase,”“the
Company,”“we,”“us,” and
“our” refer to Biolase Technology, Inc., a Delaware
corporation.
Our
Company
We are a medical technology company that develops, manufactures
and markets lasers and related products focused on technologies
for improved applications and procedures in dentistry and
medicine. In particular, our principal products provide dental
laser systems that allow dentists, periodontists, endodontists,
oral surgeons and other specialists to perform a broad range of
dental procedures, including cosmetic and complex surgical
applications. Our systems are designed to provide clinically
superior performance for many types of dental procedures, with
less pain and faster recovery times than are generally achieved
with drills, scalpels and other dental instruments. We have
clearance from the U.S. Food and Drug Administration
(“FDA”) to market our laser systems in the United
States and also have the necessary approvals to sell our laser
systems in Canada, the European Union and certain other
international markets.
We offer two categories of laser system products:
(i) Waterlase systems and (ii) Diode systems. Our
flagship product category, the Waterlase system, uses a patented
combination of water and laser to perform most procedures
currently performed using dental drills, scalpels and other
traditional dental instruments for cutting soft and hard tissue.
We also offer our Diode laser systems to perform soft tissue and
cosmetic procedures, including tooth whitening. We believe that
we are the world’s leading dental laser manufacturer and
distributor. Since 1998, we have sold approximately 8,000
Waterlase systems, including over 4,000 Waterlase MD systems,
and more than 16,000 laser systems in total in over 50
countries. Other products under development address
ophthalmology and other medical and consumer markets.
We currently operate in a single reportable business segment. We
had net revenues of $26.2 million, $43.3 million and
$64.6 million in 2010, 2009 and 2008, respectively, and we
had net losses of $12.0 million, $3.0 million and
$9.1 million for the same periods.
Our independent registered public accounting firm, BDO USA, LLP,
has included an explanatory paragraph in their opinion that
accompanies our audited consolidated financial statements as of
and for the year ended December 31, 2010, indicating that
recurring losses from operations, declining revenues, and a
working capital deficit at December 31, 2010 raised
substantial doubt about our ability to continue as a going
concern.
We were originally formed as Societe Endo Technic, SA
(“SET”) in 1984 in Marseilles, France, to develop and
market various endodontic and laser products. In 1987, SET
merged into Pamplona Capital Corp., a public holding company
incorporated in Delaware. In 1994, we changed our name to
Biolase Technology, Inc. Since 1998, our primary objective has
been to be the leading designer, manufacturer and marketer of
laser systems for the dental industry. Our principal offices are
located at 4 Cromwell, Irvine, California92612 and our
telephone number is
(949) 361-1200.
Our website is www.biolase.com. Information contained on, or
accessible through, our website does not constitute a part of
this prospectus.
This offering relates to the disposition from time to time of up
to 2,348,920 shares of our common stock issued or issuable
to the selling stockholders, consisting of 1,625,947 shares
of our common stock and 722,973 shares of our common stock
issuable upon exercise of warrants. We sold these
1,625,947 shares of common stock and warrants to the
selling stockholders in private placement transactions that were
completed in June 2011 (the “Private Placement”).
Rodman & Renshaw, LLC acted as the exclusive placement
agent for the issuance and sale of the securities in the Private
Placement.
The selling stockholders may from time to time offer and sell
any or all of the shares under this prospectus; however, the
selling stockholders are not obligated to sell the shares.
We intend for the shares of common stock issuable upon exercise
of the warrants from the Private Placement (for up to
722,973 shares) to be issued to the selling stockholders in
transactions exempt from registration under the Securities Act
pursuant to Rule 506 of the Securities Act. The warrants
shall not be exercisable until December 24,2011 — six months after their issuance to the selling
stockholders.
Concurrent with our issuance and sale of the common stock and
warrants in the Private Placement, we also entered into a
Registration Rights Agreement with the selling stockholders (the
“Registration Rights Agreement”) that required us to
file a registration statement with the SEC covering the resale
by such selling stockholders of the common stock and the shares
of common stock issuable upon exercise of the warrants issued in
the Private Placement. This prospectus is a part of that
registration statement. Pursuant to the Registration Rights
Agreement, we are obligated to file and maintain for the benefit
of the selling stockholders a registration statement with
respect to the shares of common stock and the shares of common
stock issuable upon exercise of the warrants issued in the
Private Placement, until the earlier of (i) the date on
which all such shares may be resold by the selling stockholders
without registration and without regard to any volume or
manner-of-sale limitations by reasons of Rule 144 under the
Securities Act, without the requirement for the Company to be in
compliance with the current public information provision under
Rule 144 or any other rule of similar effect or
(ii) all such shares have been sold pursuant to this
prospectus or Rule 144 under the Securities Act or any
other rule of similar effect. If we fail to meet this
obligation, we may be subject to certain penalties, including
monetary penalties, set forth in the Registration Rights
Agreement. The foregoing description of the Registration Rights
Agreement does not purport to be complete and is qualified in
its entirety by reference to the full text of such agreement, a
copy of which is filed as an exhibit to this registration
statement and is incorporated herein by reference.
Use of Proceeds
We are not selling any shares of common stock or warrants in
this offering and, therefore will not receive any proceeds from
this offering by the selling stockholders. However, we will
receive the
proceeds from the exercise of the warrants by the selling
stockholders, if any, to the extent that the warrants are not
exercised on a cashless or net basis. If all the warrants are
exercised for cash, we would receive an aggregate of $4,699,325
from such exercise.
We anticipate that any net proceeds we receive in connection
with the selling stockholders’ cash exercise of the
warrants will be used for general corporate purposes and working
capital.
Risk Factors
Investing in our common stock involves a high degree of risk.
You should consider carefully the risk factors beginning on
page 21 under Part I, Item 1A. of our Annual
Report on
Form 10-K
for the year ended December 31, 2010, which is incorporated
by reference into this Prospectus, as well those described or
may be described in any subsequent quarterly report on
Form 10-Q
under Part II, Item IA or annual report on
Form 10-K
under Part I, Item 1A incorporated by reference into
this prospectus or related prospectus supplements.
We are not selling any shares of common stock or warrants in
this offering and, therefore will not receive any proceeds from
this offering by the selling stockholders. However, we will
receive the proceeds from the exercise of the warrants by the
selling stockholders, if any, to the extent that the warrants
are not exercised on a cashless or net basis. If all the
warrants are exercised for cash, we would receive an aggregate
of $4,699,325 from such exercise.
We anticipate that any net proceeds we receive in connection
with the selling stockholders’ cash exercise of the
warrants will be used for general corporate purposes and working
capital.
The following table presents information regarding the selling
stockholders’ beneficial ownership of our common stock as
of June 29, 2011 based upon information provided by them
which we have not independently verified. Although we have
assumed for purposes of the table that the selling stockholders
will sell all of the shares offered by this prospectus, because
they may from time to time offer all or some of their shares
under this prospectus or in another manner, no assurance can be
given as to the actual number of shares that will be resold by
the selling stockholders (or any of them), or that will be held
after completion of any resales. In addition, a selling
stockholder may have sold or otherwise disposed of shares in
transactions exempt from the registration requirements of the
Securities Act or otherwise since the date such selling
stockholder provided information to us. The selling stockholders
are not making any representation that the shares covered by
this prospectus will be offered for sale. Except as may be set
forth below, no selling stockholder has held any position,
office or other material relationship with us or our
predecessors or affiliates within the past three years.
Beneficial ownership is determined in accordance with
Regulation 13D of the Securities Act. Under
Regulation 13D a person is deemed to be the beneficial
owner of a security, subject to certain exceptions, if that
person has the right to acquire beneficial ownership of such
security within sixty days. Because the selling stockholders may
not exercise the warrants until December 24, 2011 (more
than sixty days from June 29, 2011, the date at which the
table below is calculated), for purposes of Regulation 13D,
the selling stockholders do not as of June 29, 2011
beneficially own the shares of common stock underlying the
warrants sold to them in the Private Placement. As such, the
shares of common stock underlying the warrants are not reflected
in the column labeled “Number of Shares Owned as of
the Date of this Prospectus” in the table below. The column
labeled “Number of Shares Offered Hereby” in the
table below, assumes that each selling stockholder fully
exercises its warrants for cash. The column labeled “Number
of Shares to Be Owned after Sale of Shares pursuant to this
Offering” assumes that the selling stockholders sell all
the shares registered under this prospectus.
The terms of the warrants provide that no selling stockholder
may exercise the warrants for shares of common stock for at
least six months from June 29, 2011. Except as set forth in
the table below, the terms of the warrants further provide that,
subject to certain exceptions, a selling stockholder may not
exercise the warrants, to the extent such exercise would cause
such selling stockholder, together with its affiliates, to
beneficially own a number of shares of common stock which would
exceed 4.99% of our then outstanding shares of common stock
following such exercise (which upon notice may be increased or
decreased, but may not under any circumstances exceed 9.99%),
excluding for purposes of such determination shares of common
stock issuable upon exercise of the warrants which have not been
exercised. Notwithstanding the foregoing, all shares that are
issuable to a selling stockholder upon exercise of the warrants
are included in the number of
shares being offered in this table without taking the 4.99%
limitation into account. The selling stockholders may sell all,
some or none of their shares in this offering.
Number of
Shares to Be
Number of
Number of
Owned after
Shares Owned
Shares
Sale of Shares
as of June 29,
Offered
pursuant to this
Names
2011(1)
Hereby(2)
Offering(3)
Anson Investments Master Fund LP
500,000
750,000
0
Deerfield Special Situations Fund International, Limited(4)
439,640
659,459
0
Deerfield Special Situations Fund, L.P.(4)
281,081
421,622
0
Cranshire Capital LP(5)
169,370
254,055
0
Freestone Advantage Partners, LP(6)
10,810
16,215
0
Hudson Bay Master Fund Ltd.(7)
45,046
67,569
0
Kingsbrook Opportunities Master Fund LP(8)
180,000
180,000
0
TOTAL:
1,625,947
2,348,920
0
(1)
Includes all securities directly and indirectly beneficially
owned by each selling stockholder calculated in accordance with
Regulation 13D of the Securities Act. As noted above,
because the warrants are not exercisable within 60 days of
June 29, 2011, the selling stockholders do not as of such
date beneficially own the shares of common stock underlying the
warrants.
(2)
Includes all shares of common stock issued, or issuable upon the
exercise of warrants, in connection with the transactions
described under “Prospectus Summary — The
Offering.”
(3)
Assumes all shares registered under this prospectus will be sold.
(4)
Unlike the terms of the warrants issued to the other selling
stockholders, the terms of the warrants issued to Deerfield
Special Situations Fund International, Limited and Deerfield
Special Situations Fund, L.P. permit such selling stockholder to
exercise its warrants if immediately after such exercise the
selling stockholder would beneficially own more than 4.99% of
our then outstanding shares of common stock, provided, however,
that the selling stockholder may not exercise the warrants, to
the extent such exercise would cause such selling stockholder,
together with its affiliates, to beneficially own a number of
shares of common stock which would exceed 9.985% of our then
outstanding shares of common stock following such exercise
(which upon notice may be increased or decreased, but may not
under any circumstances exceed 9.99%).
(5)
Downsview Capital, Inc. (“Downsview”) is the general
partner of Cranshire Capital, L.P. (“Cranshire”) and
has voting control and investment discretion over securities
held by Cranshire. Mitchell P. Kopin
(“Mr. Kopin”), President of Downsview, has voting
control over Downsview. As a result of the foregoing, each of
Mr. Kopin and Downsview may be deemed to have beneficial
ownership (as determined under Section 13(d) of the
Securities Exchange Act of 1934, as amended) of the shares of
common stock beneficially owned by Cranshire.
(6)
Downsview is the investment manager for a managed account of
Freestone Advantage Partners, LP and has voting control and
investment discretion over securities held in such account.
Mitchell P. Kopin (“Mr. Kopin”), President of
Downsview, has voting control over Downsview. As a result, each
of Mr. Kopin and Downsview may be deemed to have beneficial
ownership (as determined under Section 13(d) of the
Securities Exchange Act of 1934, as amended) of the shares held
in such account which are being registered hereunder.
(7)
Hudson Bay Capital Management LP, the investment manager of
Hudson Bay Master Fund Ltd. (“Hudson Bay”), has
voting and investment power over these securities. Sander Gerber
is the managing member of Hudson Bay Capital GP LLC, which is
the general partner of Hudson Bay Capital Management LP. Sander
Gerber disclaims beneficial ownership over these securities.
(8)
Kingsbrook Partners LP (“Kingsbrook Partners”) is the
investment manager of Kingsbrook Opportunities Master
Fund LP (“Kingsbrook Opportunities”) and has
voting control and investment discretion over securities held by
Kingsbrook Opportunities. Kingsbrook Opportunities GP LLC
(“Opportunities GP”) is the general partner of
Kingsbrook Opportunities and may be considered the beneficial
owner of any securities deemed to be beneficially owned by
Kingsbrook Opportunities. KB GP LLC (“GP LLC”) is
the general
partner of Kingsbrook Partners and may be considered the
beneficial owner of any securities deemed to be beneficially
owned by Kingsbrook Partners. Ari J. Storch, Adam J. Chill and
Scott M. Wallace are the sole managing members of
Opportunities GP and GP LLC and as a result may be considered
beneficial owners of any securities deemed beneficially owned by
Opportunities GP and GP LLC. Each of Kingsbrook Partners,
Opportunities GP, GP LLC and Messrs. Storch, Chill and
Wallace disclaim beneficial ownership of these securities.
On August 2, 2011, we repurchased from Kingsbrook
Opportunities the common stock warrant exercisable for
90,000 shares of our common stock that we previously sold
to Kingsbrook Opportunities in the Private Placement. As a
result, the 90,000 shares of our common stock issuable upon
exercise of such warrant are not included in the
above-referenced Selling Stockholder table and are not otherwise
included in the total number of shares of our common stock
offered by this prospectus.
If and when a selling stockholder sells all of his shares of
common stock registered under this prospectus, none of the
selling stockholders will own more than one percent (1%) of our
common stock at June 29, 2011.
Each selling stockholder of the securities and any of their
pledgees, assignees and
successors-in-interest
may, from time to time, sell any or all of their securities
covered hereby on the NASDAQ Capital Market or any other stock
exchange, market or trading facility on which the securities are
traded or in private transactions. These sales may be at fixed
or negotiated prices. A selling stockholder may use any one or
more of the following methods when selling securities:
•
ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
•
block trades in which the broker-dealer 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 the
broker-dealer for its account;
•
an exchange distribution in accordance with the rules of the
applicable exchange;
•
privately negotiated transactions;
•
settlement of short sales entered into after the effective date
of the registration statement of which this prospectus is a part;
•
through the writing or settlement of options or other hedging
transactions, whether through an options exchange or otherwise;
•
in transactions through broker-dealers that agree with the
selling stockholders to sell a specified number of such shares
at a stipulated price per share;
•
a combination of any such methods of sale; and
•
any other method permitted by applicable law.
The selling stockholders may also sell securities under
Rule 144 under the Securities Act if available, rather than
under this prospectus.
Broker-dealers engaged by the selling stockholders may arrange
for other broker-dealers to participate in sales. Broker-dealers
may receive commissions or discounts from the selling
stockholders (or, if any broker-dealer acts as agent for the
purchaser of securities, from the purchaser) in amounts to be
negotiated, but, except as set forth in a supplement to this
prospectus, in the case of an agency transaction not in excess
of a customary brokerage commission in compliance with FINRA
Rule 2440; and in the case of a principal transaction a
markup or markdown in compliance with FINRA IM-2440.
In connection with the sale of the securities, the selling
stockholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in
turn engage in short sales of the securities in
the course of hedging the positions they assume. The selling
stockholders may also sell securities short and deliver these
securities to close out their short positions, or loan or pledge
the securities to broker-dealers that in turn may sell these
securities. The selling stockholders may also enter into option
or other transactions with broker-dealers or other financial
institutions or create one or more derivative securities which
require the delivery to such broker-dealer or other financial
institution of securities offered by this prospectus, which
securities such broker-dealer or other financial institution may
resell pursuant to this prospectus (as supplemented or amended
to reflect such transaction).
The selling stockholders and any broker-dealers or agents that
are involved in selling the securities may be deemed to be
“underwriters” within the meaning of the Securities
Act in connection with such sales. In such event, any
commissions received by such broker- dealers or agents and any
profit on the resale of the securities purchased by them may be
deemed to be underwriting commissions or discounts under the
Securities Act. Each selling stockholder has informed the
Company that it does not have any written or oral agreement or
understanding, directly or indirectly, with any person to
distribute the securities. In no event shall any broker-dealer
receive fees, commissions and markups which, in the aggregate,
would exceed eight percent (8%).
The Company is required to pay certain fees and expenses
incurred by the Company incident to the registration of the
securities. The Company has agreed to indemnify the selling
stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
Because selling stockholders may be deemed to be
“underwriters” within the meaning of the Securities
Act, they will be subject to the prospectus delivery
requirements of the Securities Act including Rule 172
thereunder. In addition, any securities covered by this
prospectus which qualify for sale pursuant to Rule 144
under the Securities Act may be sold under Rule 144 rather
than under this prospectus. The selling stockholders have
advised us that there is no underwriter or coordinating broker
acting in connection with the proposed sale of the resale
securities by the selling stockholders.
The Company has agreed to keep this prospectus effective until
the earlier of (i) the date on which the securities may be
resold by the selling stockholders without registration and
without regard to any volume or
manner-of-sale
limitations by reason of Rule 144, without the requirement
for the Company to be in compliance with the current public
information provision under Rule 144 under the Securities
Act or any other rule of similar effect or (ii) all of the
securities have been sold pursuant to this prospectus or
Rule 144 under the Securities Act or any other rule of
similar effect. The resale securities will be sold only through
registered or licensed brokers or dealers if required under
applicable state securities laws. In addition, in certain
states, the resale securities covered hereby 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 Exchange Act,
any person engaged in the distribution of the resale securities
may not simultaneously engage in market making activities with
respect to the common stock for the applicable restricted
period, as defined in Regulation M, prior to the
commencement of the distribution. In addition, the selling
stockholders will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including
Regulation M, which may limit the timing of purchases and
sales of securities of the common stock by the selling
stockholders or any other person. We will make copies of this
prospectus available to the selling stockholders and have
informed them of the need to deliver a copy of this prospectus
to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
We have filed a registration statement on
Form S-3
with the SEC covering the shares of common stock offered by this
prospectus. As permitted by the rules and regulations of the
SEC, this prospectus omits certain information, exhibits and
undertakings contained in the registration statement. For
further information pertaining to the shares of common stock
offered by this prospectus, reference is made to the
registration statement, including the exhibits filed as a part
thereof.
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. Our SEC filings are
available to the public over the Internet at the SEC’s
website at
http://www.sec.gov.
The SEC’s website contains reports, proxy and
information statements and other information regarding issuers,
such as us, that file electronically with the SEC. You may also
read and copy any document we file with the SEC at the
SEC’s Public Reference Room at 100 F Street,
N.E., Room 1580, Washington, D.C. 20549. You may also
obtain copies of these documents at prescribed rates by writing
to the SEC. Please call the SEC at
1-800-SEC-0330
for further information on the operation of its Public Reference
Room. Information about us, including our SEC filings is also
available at our Internet website at
http://www.biolase.com.
However, the information on our Internet site is not a part of
this prospectus or any prospectus supplement.
The SEC allows us to “incorporate by reference” the
information we file with them, which means that we can disclose
important information to you by referring you to those
documents. The information we incorporate by reference into this
prospectus is considered to be part of this prospectus, and
information that we file later with the SEC automatically will
update and supersede this information. We incorporate by
reference the documents listed below and any future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”):
(4) Our Proxy Statement relating to our Annual Meeting of
Stockholders held on May 5, 2011, as filed with the SEC on
March 31, 2011; and
(5) The description of our common stock contained in our
Registration Statement on
Form 8-A,
as filed with the SEC on December 29, 1998, and any
amendments or reports filed for the purpose of updating such
description.
Except as otherwise indicated, all documents we file with the
SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act subsequent to the date of this prospectus and prior
to the filing of a subsequent post-effective amendment that
indicates that all securities offered have been sold or that
deregisters all securities then remaining unsold will be deemed
to be incorporated by reference into this prospectus and to be
part hereof from the date of filing of such documents. Any
statement contained in any document incorporated or deemed to be
incorporated by reference herein will 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 which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such
statement so modified or superseded will not be deemed, except
as modified or superseded, to constitute a part of this
prospectus.
We will provide, free of charge, to any person to whom a copy of
this prospectus is delivered, upon written or oral request, a
copy of any or all of the documents incorporated by reference
into this prospectus, other than exhibits to those documents
unless specifically incorporated by reference. To request a copy
of those documents, you should contact us by writing to our
principal executive offices at Biolase Technology, Inc.,
Attention Corporate Secretary, 4 Cromwell, Irvine, California92618.
The consolidated financial statements and schedule as of
December 31, 2010 and 2009 and for each of the three years
in the period ended December 31, 2010 incorporated by
reference in this Prospectus have been so incorporated in
reliance on the report of BDO USA, LLP, an independent
registered public accounting firm (the report on the
consolidated financial statements contains an explanatory
paragraph regarding the Company’s ability to continue as a
going concern), incorporated herein by reference, given on the
authority of said firm as experts in auditing and accounting.
The following table sets forth the various expenses payable by
us in connection with the distribution of the common stock being
registered hereby. All the amounts shown are estimates, except
the Securities and Exchange Commission registration fee. All of
such expenses are being borne by us.
Securities and Exchange Commission Registration Fee
$
1,461
Printing and Engraving Expenses
10,000
Legal Fees and Expenses
40,000
Accounting Fees and Expenses
10,000
Miscellaneous Expenses
10,000
Total
$
71,461
Item 15.
Indemnification
of Directors and Officers.
Under Section 145 of the General Corporation Law of the
State of Delaware, we have broad powers to indemnify our
directors and officers against liabilities they may incur in
such capacities, including liabilities under the Securities Act
of 1933, as amended. Our Fifth Amended and Restated Bylaws also
provides for mandatory indemnification of our directors,
officers, employees and agents to the fullest extent permissible
under Delaware law.
Our Restated Certificate of Incorporation provides that the
liability of directors for monetary damages shall be eliminated
to the fullest extent permissible under Delaware law. Pursuant
to Delaware law, this includes elimination of liability for
monetary damages for breach of the directors’ fiduciary
duty of care to us and our stockholders. These provisions do not
eliminate the directors’ duty of care and, in appropriate
circumstances, equitable remedies such as injunctive or other
forms of non-monetary relief will remain available under
Delaware law. In addition, each director will continue to be
subject to liability for breach of the director’s duty of
loyalty to us for acts or omissions not in good faith or
involving intentional misconduct, for knowing violations of law,
for any transaction from which the director derived an improper
personal benefit, and for payment of dividends or approval of
stock repurchases or redemptions that are unlawful under
Delaware law. The provision also does not affect a
director’s responsibilities under any other laws, such as
the federal securities laws or state or federal environmental
laws.
We have entered into agreements with each of our directors and
executive officers that require us to indemnify these persons
against expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred (including expenses of
a derivative action) in connection with any proceeding, whether
actual or threatened, to which each may be made a party by
reason of the fact that each is or was a director or officer of
our company or any of our affiliates, provided the person acted
in good faith and in a manner the person reasonably believed to
be in or not opposed to our best interests and, with respect to
any criminal proceeding, had no reasonable cause to believe that
his or her conduct was unlawful. The indemnification agreements
also establish procedures that will apply if a claim for
indemnification arises under the agreements.
We maintain a policy of directors’ and officers’
liability insurance that insures our directors and officers
against the costs of defense, settlement or payment of a
judgment under some circumstances.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or
persons controlling our company pursuant to the foregoing
provisions, the opinion of the Securities and Exchange
Commission is that such indemnification is against public policy
as expressed in the Securities Act and is therefore
unenforceable.
Fifth Amended and Restated Bylaws of Biolase Technology, Inc.(2)
4
.1
Certificate of Designations, Preferences and Rights of 6%
Redeemable Cumulative Convertible Preferred Stock of Biolase
Technology, Inc. (Included in Exhibit 3.1.)
4
.2
Certificate of Designations, Preferences and Rights of
Series A 6% Redeemable Cumulative Convertible Preferred
Stock of Biolase Technology, Inc. (Included in Exhibit 3.1.)
4
.3
Certificate of Correction Filed to Correct a Certain Error in
the Certificate of Designation of Biolase Technology, Inc. filed
in the Office of Secretary of State of Delaware on July 25,1996. (Included in Exhibit 3.1.)
4
.4
Certificate of Designations of Series B Junior
Participating Cumulative Preferred Stock of Biolase Technology,
Inc. (Included in Exhibit 3.1.)
Amendment to Stockholder Rights Agreement, dated as of
December 19, 2008, by and between Biolase Technology, Inc.
and Computershare Trust Company, N.A., as Rights Agent(2)
4
.7
Form of Rights Certificate with respect to the Rights Agreement
(Included in Exhibit 4.5)
(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 thereof) 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 the
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 Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 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 (i), (ii) and (iii) above do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed
pursuant to Rule 424(b) that is part of the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(B) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that
no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus
that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date; or
(ii) If the registrant is subject to Rule 430C, each
prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be
deemed to be part of and included in the registration statement
as of the date it is first used after effectiveness; provided,
however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in
a document incorporated or deemed incorporated by reference into
the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made
in any such document immediately prior to such date of first use.
(5) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the 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.
(6) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 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
Securities and Exchange Commission such indemnification is
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 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 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 No. 1 to the
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Irvine,
State of California on this 18th day of August, 2011.
BIOLASE TECHNOLOGY, INC.
By:
/s/ Federico
Pignatelli
Name: Federico Pignatelli
Title:
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the registration statement has been
signed by the following persons in the capacities and on the
dates indicated.
Name
Position
Date
/s/ Federico
Pignatelli
Federico
Pignatelli
Chairman, Chief Executive Officer, and Director (Principal
Executive Officer)
