UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
Form 10-K
 
   
(Mark One)  
 
þ
 ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
  For the fiscal year ended December 31, 20072008
OR
o
 TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
  For the transition period from          to
 
Commission file number000-19627
 
 
BIOLASE TECHNOLOGY, INC.
(Exact Name of Registrant as Specified in Its Charter)
 
   
Delaware
87-0442441
(State or Other Jurisdiction(I.R.S. Employer

of Incorporation or Organization)
 87-0442441
(I.R.S. Employer
Identification No.)
 
4 Cromwell
Irvine, California 92618
(Address of Principal Executive Offices, including zip code)
 
(949) 361-1200
(Registrant’s telephone number, including area code)
 
 
Securities registered pursuant to Section 12(b) of the Act:
 
(Title of Each Class)
(Name of Each Exchange on Which Registered)
Common Stock, par value $0.001 per share
The NASDAQ Stock Market LLC
(NASDAQ Global Market)
Common Stock, par value $0.001 per share
(Title of class)
 
Securities registered pursuant to Section 12(g) of the Act:
None.
 
 
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.  Yes o     No þ
 
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.  Yes o     No þ
 
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days.  Yes þ     No o
 
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 ofRegulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in the definitive proxy or information statements incorporated by reference in Part III of thisForm 10-K or any amendment to thisForm 10-K.  o
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a non-accelerated filer.smaller reporting company. See definitionthe definitions of “large accelerated filer,” “accelerated filerfiler” and large accelerated filer”“smaller reporting company” in RuleRule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer o
Accelerated filer þNon-accelerated filer oSmaller reporting company o
(Do not check if a smaller reporting company)
 
Indicate by check mark whether the registrant is a shell company (as defined inRule 12b-2 of the Act).  Yes o     No þ
 
The aggregate market value of the voting and non-voting common equity held by non-affiliates was $122,295,283$79,302,879 on June 29, 2007,30, 2008, based on the closing price per share of $6.07$3.42 for the registrant’s common stock as reported on the NASDAQ Stock Market LLC on such date.
 
As of March 12, 2008,2009, there were 24,124,40124,244,201 shares of the Registrant’s common stock, par value $0.001 per share, outstanding.
 
DOCUMENTS INCORPORATED BY REFERENCE
 
Part III of this report incorporates information from the registrant’s definitive proxy statement for its annual meeting of stockholders, which proxy statement is due to be filed with the Securities and Exchange Commission no later than 120 days after December 31, 2007.2008.
 


 

 
BIOLASE TECHNOLOGY, INC.
 
ANNUAL REPORT ONFORM 10-K
FOR THE FISCAL YEAR ENDED DECEMBER 31, 20072008
 
TABLE OF CONTENTS
 
         
    Cautionary NotesStatement Regarding Forward Looking Statements  1 
   Business  2 
   Risk Factors  19 
   Unresolved Staff Comments  34 
   Properties  34 
   Legal Proceedings  3534 
   Submission of Matters to a Vote of Security Holders  3736 
 
   Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities  3736 
   Selected Consolidated Financial Data  3938 
   Management’s Discussion and Analysis of Financial Condition and Results of Operations  4039 
   Quantitative and Qualitative Disclosures About Market Risk  5251 
   Financial Statements and Supplementary Data  5251 
   Changes in and Disagreements with Accountants on Accounting and Financial Disclosure  5251 
   Controls and Procedures  5352
Other Information54 
 
   Directors, and Executive Officers of the Registrantand Corporate Governance  5754 
   Executive Compensation  5754 
   Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters  5754 
   Certain Relationships and Related Transactions, and Director Independence  5754 
   Principal Accountant Fees and Services  5754 
 
   Exhibits and Financial Statement Schedules  5855 
 EXHIBIT 21.1EX-10.22
 EXHIBIT 23.1EX-10.28
 EXHIBIT 31.1EX-21.1
 EXHIBIT 31.2EX-23.1
 EXHIBIT 32.1EX-31.1
 EXHIBIT 32.2EX-31.2
EX-32.1
EX-32.2
 
 
BIOLASE®, MillenniumZipTip®, Pulsemasterezlase®, eztips®, MD Flow® and Waterlase® are registered trademarks of Biolase Technology, Inc., and LaserSmiletm,Diolasetm,Diolase Plustm, Comfort Jettm, ezlasetm, HydroPhotonicstm, LaserPaltm, MD FlowComfortpulsetm, YSGG Waterlase MD Goldtm, Soft TouchWCLItm, World Clinical Laser Institutetm, Waterlase MDtm, HydroBeamtm, SensaTouchtm, Occulasetm and OculaseC100tm are trademarks of BIOLASE Technology, Inc. All other product and company names are registered trademarks or trademarks of their respective owners.


 
CAUTIONARY NOTESSTATEMENT REGARDING FORWARD LOOKING STATEMENTS
 
This Annual Report containsonForm 10-K, particularly in Item 1. “Business,” and Item 7. “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and the documents incorporated by reference, include forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, as amended. All statements, other than statements of historical fact, are statements that involve a number of risks and uncertainties. Thesecould be deemed forward-looking statements, and include, but are not limited to, statements and predictions regarding our operating expenses, sales and operations, 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, including any statement using terminology such as “may,” “might,” “will,” “intend,” “should,” “could,” “can,” “would,” “expect,” “believe,” “estimate,” “predict,” “potential,” “plan,” or the negativities of these terms or other comparable terminology. For all of the foregoing forward-looking statements, we claim the protection of the Private Securities Litigation Reform Act of 1995. These statements are only predictions and actual events or results may differ materially and adversely from our expectations. Important factors that could cause actual results to differ materially from those stated or implied by our forward-looking statements include, but are not limited to, the impact of changes in demand for our products, our effectiveness in managing manufacturing costs and expansion of our operations, the impact of competition and of technological advances, and the risks set forth under “Risk Factors” in Item 1A. These forward-looking statements represent our judgment as of the date hereof. We undertake no obligation to revise or update publicly any forward-looking statements for any reason.
 
The information contained in this Annual Report onForm 10-K 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 this Annual Report and in our other reports filed with the Securities and Exchange Commission (the “SEC”).


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PART I
 
Item 1.  Business
 
Overview
 
We are a medical technology company that develops, manufactures and markets lasers, and related products and services focused on technologies for improved applications and procedures in dentistry and medicine. In particular, our principleWaterlase Dentistry solution is a comprehensive group of products areincluding dental laser systems that allow general 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 traditional dental instruments. We offerThe Waterlase Dentistry solution offers two categories of laser system products: our Waterlase family of products and our DiolaseDiode family of products which includes ourezlasesystem.system, as well as related consumables, training and services.
 
Waterlase systems.  Our Waterlase systems use a patented combination of water and laser to perform most dental procedures currently performed using dental drills, scalpels and other traditional dental instruments for cutting soft and hard tissue plus bone. We refer to our patented interaction of water and laser as YSGG Laser HydroPhotonics. In October 2004, we launched our newest generation Waterlase system, the Waterlase MD. The Waterlase MD has a broad range of clinical capabilities both in dentistry and other medical disciplines. We designed the Waterlase MD to provide the clinical benefits dentists’ desire, while also providing the comfort sought by patients. Advanced capabilities and new features coupled with innovative, ergonomic styling and design are part of our proprietary MD technology platform. In July 2008, our Waterlase C100 All-Tissue Dental Laser System was introduced into the market. In February 2009, we introduced the Waterlase MD Turbo All-Tissue Dental Laser System, an upgrade to the original Waterlase MD with cutting speeds approaching that of a high speed drill.
 
DiolaseDiode systems.We also offer a line of DiolaseDiode laser systems which use a semiconductor diode laser to perform soft tissue and cosmetic procedures, including teeth whitening. Our DiolaseDiode systems serve the growing markets of cosmetic and hygiene procedures. During 2006, we offered the DioLase Plus diode laser system and the LaserSmile diode laser system. The DioLase Plus is an entry-level, cosmetic, soft tissue and periodontal laser which has many cosmetic and soft tissue applications, including: soft tissue curettage; laser removal of diseased, infected, inflamed and necrosed soft tissue within the periodontal pocket; and removal of highly inflamed edematous tissue affected by bacteria penetration of the pocket lining and junctional epithelium. The LaserSmile diode laser system can be used to perform the same soft tissue and cosmetic procedures as the DioLase Plus system, but adds the capability of performing teeth whitening procedures. In early 2007, we received FDA 510(k) clearance for and launched the newezlasediode laser system. Theezlase system’s approved indications include incision, excision, vaporization, ablation and coagulation of oral soft tissues as well as laser periodontal procedures, including laser soft tissue curettage and laser removal of diseased, infected, inflamed and necrosed soft tissue within the periodontal pocket, and sulcular debridement. In December 2008, we received an additional 510(k) clearance for tooth whitening using theezlase.
 
We have clearance from the U.S. Food and Drug Administration, or 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 are currently pursuing regulatory approval to market and sell our Waterlase systems in Japan. Since 1998, we have sold approximately 6,3007,200 Waterlase systems, including over 2,7003,300 Waterlase MD systems, and over 9,50012,000 laser systems in total in over 50 countries.
 
We believe there is a large market for our products in the United States and internationally. According to the American Dental Association, or ADA, there are over 160,000 practicing dentists in the United States. According to the World Federation of Dentistry, an international dental organization, there are at least 700,000 dentists worldwide, and we believe that a substantial percentage of them practice in major international markets outside the United States. The use of lasers in dentistry is growing. However, we believe only a small percentage of dentists currently use laser systems, and that there is a significant opportunity to increase sales of our products worldwide.
 
Our goal is to establish our laser systems as essential tools in dentistry and to continue to build a leading position in the dental laser market. Our sales and marketing efforts focus on educating dental professionals and patients on the benefits of our laser systems, particularly our Waterlase systems.Dentistry solution. In 2002, we founded the


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World Clinical Laser Institute, an association that includes prominent researchers, educators and practicing dentists, to formalize our


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efforts to educate and train dentists and specialists in laser dentistry. We participate in numerous other symposia and dental industry events to educate and stimulate demand for our products. We have also developed numerous relationships with dental schools, research facilities and dental institutes, in the United States and internationally, which use our products for education and training. We believe this will expand awareness of our products among new generations of dental professionals.
 
We were originally formed as Societe Endo Technic, SA, or SET, in 1984 in Marseilles, France, to develop and market various endodontic and laser products. In 1987, SET was moved to the United States and was merged with a public holding company, Pamplona Capital Corp. In 1994, we changed our name to BIOLASE Technology, Inc. Since 1998, our objective has been to become the leading designer, manufacturer and marketer of laser systems for the dental industry.
 
Industry Background
 
General
 
We estimate that more than 200 million hard tissue procedures are performed annually in the United States. Hard tissue procedures include cavity preparation, root canals and other procedures involving bone or teeth. The survey also indicated that more than 1.2 million soft tissue procedures are performed annually in the United States. Soft tissue procedures include gum line alteration and other procedures involving soft dental tissue. According to statistics compiled by the ADA, over 90% of hard tissue procedures and 60% of soft tissue procedures in the United States are performed by general dentists, and the rest are performed by oral surgeons, endodontists, periodontists and other specialists.
 
The ADA estimates that the demand for dental services in the United States will continue to grow due to population growth and the increased awareness of the benefits associated with preventive dentistry in reducing the incidence of oral and systemic disease. According to the ADA, annual dental spending in the United States in 20062008 was $91.5$99.9 billion and is expected to increase by approximately two percent to approximately $146.9 billion by 2014.six percent per year through 2015.
 
We believe there is a growing awareness among consumers of the value and importance of a healthy smile.smile and its connections to overall systemic health. As such, the dental industry has entered an era of growth and consideration of advanced technologies that allow dentists to perform simple or complex cosmetic dental procedures with minimal trauma, improved patient acceptance and clinically superior results. We believe our product offering corresponds with this trend, and we expect incremental growth from these pressures in the marketplace.
 
Traditional Dental Instruments
 
Dental procedures are performed on hard tissue, such as bone and teeth, and soft tissue, such as gum and other oral tissue. Dentists and other specialists choose from a variety of instruments depending on the tissue involved and the type of procedure. Most procedures require the use of multiple instruments to achieve the desired result.
 
High Speed Drills.  Most dentists use high speed drills for hard tissue procedures, such as preparing cavities for filling and gaining access for performing root canals or shaving and contouring oral bone tissue. Potentially adverse effects associated with drills include thermal heat transfer, vibration, pressure and noise. The cutting and grinding action of high speed drills can cause damage to the patient’s dental structure and the trauma caused to the surrounding tissues can lead to increased recovery times. Additionally, this grinding action of high speed drills on teeth can potentially provide an entry point for the bacteria that cause tooth decay andmay weaken the tooth’s underlying structure, leading to fractures and broken cusps. Crowns and root canals may become necessary as a result of damage caused during previous dental procedures. Anesthesia is generally required for all procedures that involve the use of high speed drills. As a result, dentists often limit procedures to one or two quadrants of the mouth because of concerns relating to the use of anesthesia in several regions. This can force patients to return several times to complete their treatment plan.


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Cutting Instruments.  Soft tissue procedures, such as reshaping gum lines and grafting on new gum tissue, are typically performed by oral surgeons or periodontists using scalpels, scissors and other cutting tools.


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Due to the pain and discomfort associated with procedures performed with these instruments, most soft tissue procedures require the use of local anesthetic which results in numbness and discomfort, and often require stitches. Use of scalpels, scissors and other cutting tools typically cause bleeding, post-operative swelling and discomfort. Bleeding can impair the practitioner’s visibility during the procedure, thereby reducing efficiency. Bleeding is a particular problem for patients with immune deficiencies or blood disorders, and patients taking blood-thinning medications.
 
Alternative Dental Instruments
 
Alternative technologies have been developed over the years to address the problems associated with traditional methods used in dentistry. Most alternatives have addressed either hard or soft tissue applications. The predominant alternative technologies are discussed below.
Air Abrasion Systems.  Air abrasion systems were introduced as an alternative to the high speed drill for hard tissue procedures. Air abrasion systems blow a powerful air stream of aluminum oxide particles to erode hard tissue and remove the harder forms of decay. Air abrasion can be effective for repairing cracks and discolorations, cleaning out pits and fissures, preparing cavities to be filled with composites and preparing tooth surfaces for bonding. However, air abrasion is not suitable for a variety of hard tissue procedures and cannot be used on or near soft tissue. In addition, the use of air abrasion is time consuming and scatters particles that can be inhaled by patients and staff, as well as damage equipment and instruments. Due to these limitations, we believe the popularity of these systems has declined.
 
Electrosurge Systems.  Electrosurge systems use an electrical current to heat a shaped tip that simultaneously cuts and cauterizes soft tissue, resulting in less bleeding than occurs with scalpels. However, electrosurge can deeply penetrate the soft tissue, which can result in unwanted damage to surrounding tissue, and is generally less precise than lasers. Electrosurge is also not suitable for hard tissue procedures and, due to the depth of penetration, generally requires use of anesthesia and involves a lengthy healing process. Use of electrosurge is generally restricted from the areas near metal fillings and dental implants. Finally, electrosurge generally cannot be used with patients with implanted pacemakers and defibrillators.
 
Traditional Laser Systems.  More recently, lasers have gained acceptance for use in general and cosmetic dentistry. Most lasers used in dentistry have been adapted from other medical applications, such as dermatology, and are not designed to perform a wide range of common dental procedures. Most dental lasers use thermal energy to cut tissue and are used primarily for soft tissue procedures.
 
Due to the limitations associated with traditional and alternative dental instruments, we believe there is a large market opportunity for all-tissue dental laser systems that provide superior clinical results and help reduce the trauma, pain and discomfort associated with dental procedures.
 
Our Solution
 
We believe the potential for increased patient satisfaction, improved outcomes and enhanced practice profitability that can be achieved through use of our products will position our laser systems as the instruments of choice among practitioners and patients for a broad range of dental procedures.patients. We have developed our laser systems and related products specifically for the dental market to more effectively perform a broad range of dental procedures. We believe the skill level and dexterity necessary to operate our laser systems are similar to those necessary to operate conventional drills and other dental equipment. Our laser systems also have the advantage of being minimally invasive and able to perform procedures in narrow spaces where access by conventional instruments often is limited. Our systems are intended to complement traditional tools, such as dental drills, which perform functions that our systems do not address, such as cutting metal fillings and certain polishing and grinding functions.
 
Our Waterlase systems precisely cut hard tissue, such as bone and teeth, and soft tissue, such as gums, with minimal or no damage to surrounding tissue and dental structure. Our DiolaseDiode systems are designed to complement the Waterlase systems, and are used in soft tissue procedures, hygiene and cosmetic applications.


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The DiolaseDiode systems, together with our Waterlase systems, offer practitioners a broad product line with a range of features and price points.
 
A small percentage of dental professionals worldwide currently use lasers. Moreover, our laser systems are more expensive than traditional dental tools. However, we believe that the significant clinical advantages of our systems, patient benefits, the potential return on investment that our systems offer practitioners and the options available to finance the purchase of our systems will enable us to continue to penetrate the dental


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market segment. Laser technologies with similar patient benefits have become standard of care in ophthalmology, dermatology and other medical specialties.
 
We believe the demand for our systems will continue to expand as we increase awareness of the benefits to patients and dental professionals.
 
Benefits to Dental Professionals
 
• Expanded range of procedures and revenue opportunities.  Our laser systems often allow general dentists to perform surgical and cosmetic procedures that they are unable or unwilling to perform with conventional methods, and which would typically be referred to a specialist. These procedures include crown lengthening, frenectomy and biopsy. Our systems allow dentists to perform these procedures easily and efficiently, increasing their range of skills and professional satisfaction.
 • Additional procedures through increased efficiency.  Our systems can shorten and reduce the number of patient visits, providing dental professionals with the ability to service more patients. For hard tissue procedures, our Waterlase systems can reduce the need for anesthesia, which enables the dental practitioner to perform multiple procedures in one visit. One advantage of this benefit is that it can be used to perform cavity preparations in multiple quadrants. In contrast, many dentists using high speed drills normally cannot perform cavity preparations in more than one quadrant per visit because of concerns relating to use of anesthesia in multiple regions. For soft tissue procedures, the Waterlase and DiolaseDiode systems allow tissue to be cut more precisely and with minimal bleeding when compared to traditional tools such as scalpels and electrosurge systems. Additionally, the LaserSmile ezlasesystem performs teethcan be used to quickly perform tooth whitening faster than competing non-laser systems due to its high power and fast activation ofwith our proprietary whitening gel.
• Expanded range of procedures and revenue opportunities. Our laser systems often allow general dentists to perform surgical and cosmetic procedures that they are unable or unwilling to perform with conventional methods, and which would typically be referred to a specialist. These procedures include crown lengthening, frenectomy and biopsy. Our systems allow dentists to perform these procedures easily and efficiently, increasing their range of skills and professional satisfaction.
 
 • Increased loyalty and expanded patient base.  We believe the improved patient comfort and convenience offered by our laser systems will help improve patient retention, attract new patients, increase revenue per patient, increase demand for elective procedures, increase acceptance of treatment plans and increase word-of-mouth referrals.
 
 • Fewer post-operative complications.  Our laser systems can reduce trauma, swelling and general discomfort, resulting in fewer post-operative complications that require follow up treatment. Practitioners can devote time to new cases, rather than treating complications from prior procedures.
 
Benefits to Patients
 
 • Comfort.  The Waterlase system is able to perform various types of dental procedures without causing the heat, vibration or pressure associated with traditional dental methods. As a result, patients can experience dramatically improved comfort during and after most procedures. In many cases, procedures can be performed without local anesthesia, which eliminates the pain associated with injections and the feeling of numbness following the procedure.
 
 • ConvenienceConvenience..  Our Waterlase system does not require anesthesia in many cases, which allows dental practitioners to perform procedures in multiple quadrants of the mouth during a single office visit. This can reduce the number of visits necessary to complete the patient’s treatment plan. Similarly, the ability to treat a wider range of procedures in the office reduces referrals with many procedures able to be treated in the same appointment as diagnosed.
 
 • Reduced trauma.trauma.  The Waterlase system avoids the thermal heat transfer, vibration and grinding action associated with the high speed dental drill. For soft tissue applications, our laser systems cut with more precision and less bleeding than typically achieved with conventional instruments. As a result, our systems can result in less trauma, swelling and general discomfort to the patient.


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 • Broader range of available procedures.  Due to the improved comfort and convenience of our Waterlase system, we believe patients are more likely to consider cosmetic and other elective procedures that would generally be time consuming and uncomfortable, including osseous crown lengthening, periodontal surgeries and numerous other procedures.


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Business Strategy
 
Our objectives are to increase our leadership position in the dental laser market and to establish our laser systems as essential tools in dentistry. Our business strategy consists of the following key elements:
 
 • Increase awareness of our laser systems among dental practitioners and patients.  We intend to further penetrate the dental market by educating dental practitioners and patients about the clinical benefits of our laser systems, particularly the Waterlase system.Dentistry. We plan to increase adoption of our laser systems by dental practitioners through our continued participation in key industry trade shows, the World Clinical Laser Institute, dental schools and other educational forums. We also intend to market our systems to dental practitioners through our laser specialists and advertising. We continue to explore marketing efforts aimed directly at patients.
 
 • Expand sales and distribution capabilities.  In the United States and Canada, we distributed our products directly to dental practitioners utilizing our direct sales force through August 31, 2006. Effective September 1, 2006, we began distributing our products through a leading U.S. dental products and equipment distributor, Henry Schein, Inc., or HSIC. Over time, we expect HSIC’s large direct sales force in the U.S. and Canada to increasingly provide high quality sales leads, while our laser specialists continue to perform technical selling and deal closing. Internationally, we intend to use established dental and medical device distributors and to use a direct sales force in select countries. We are developing an infrastructure to support growth in sales and marketing. This infrastructure includes product management, information technology systems and personnel to manage our sales force, compile sales and marketing data and better serve our customers and distributors.
Additionally, on February 27, 2009, we entered into an agreement with HSIC in which HSIC will become our distributor in certain international countries including Germany, Spain, Australia and New Zealand and will be permitted to distribute our products in those additional markets where we do not have current distribution agreements in place.
 • Expand product platform and applications.  We plan to expand our product line and product applications by developing product enhancements and new laser technologies. We also have an objective to increase our sales of disposable products that are used by dental practitioners when performing procedures using our dental laser systems. Additionally, we may strategically acquire complementary products and technologies.
 
 • Continue high quality manufacturing and customer service.  Our manufacturing operations are focused on producing high quality dental laser systems. We intend to continually develop and refine our manufacturing processes to increase production efficiencies and product quality. We provide high quality maintenance and support services through our support hotline and dedicated staff of in-house and field service personnel. Additionally, we maintain a network of factory-trained service technicians to provide maintenance and support services to customers in Europe and other markets outside the United States.
 
 • Strengthen and defend technology leadership.  We believe our proprietary Waterlase system and YSGG Laser HydroPhotonics technology represent significant advancements in dentistry. We will pursue the protection of our intellectual property rights by expanding our existing patent portfolio in the United States and internationally. We intend to strategically enforce our intellectual property rights worldwide.
 
Products
 
WeWithin our Waterlase Dentistry offering, we have two principal product lines. Our family of products includes the Waterlase and DiolaseDiode systems, which we developed through a combination of our own research and development and intellectual property obtained via various acquisitions.
 
Waterlase systems.  Our Waterlase systems consist of the original Waterlase YSGG,MD and the next generation Waterlase MD.C100 All-Tissue Dental Laser systems. Each of these systems is designed around our patented YSGG Laser HydroPhotonics technology. YSGG is a shortened abbreviation referring to the unique crystal (Er, Cr: YSGG) laser used in the


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used in the Waterlase system, which contains the elements erbium, chromium and yttrium, scandium, gallium and garnet. This unique crystal laser produces energy with specific absorption and tissue interaction characteristics optimized for dental applications. HydroPhotonics refers to the interaction of laser with water to produce energy to cut tissue. Through YSGG Laser HydroPhotonics, the Waterlase systems is minimally invasive and can precisely cut hard tissue, such as bone and teeth, and soft tissue, such as gums, without the heat, vibration or pressure associated with traditional dental treatments. By eliminating heat, vibration and pressure, our Waterlase systems reduce and, in some instances, eliminate the need for anesthesia and also result in faster healing times versus traditional modalities of treatment.
 
Both Waterlase systems incorporate an ergonomic handpiece and an extensive control panel located on the front of the system with precise preset functionality to control the mix of air and water. Each system has also been designed to be easily moved from operatory to operatory within a practice office. The Waterlase MD has expanded capabilities, features and benefits including white LED handpiece illumination, a full color touch screen improving user friendliness (with a built in user “Help” system), a more refined water spray that improves cutting, more power, a smaller footprint, with an overall 40% reduction in size, and a Windows CE operating system. In 2007,2008, we introduced our Gold Handpiece which when combinedthe new clinical procedure for endodontics root canal disinfection with ourradial firing tips. The Waterlase MD system provides for fasterTurbo All-Tissue Dental Laser System was introduced in the first quarter of 2009 further enhancing cutting speed to comparable levels of hard tissues.the high speed drill.
 
Diolase systems.Diode system.  Our DiolaseDiode laser systems consistsystem consists of theezlase,, DioLase Plus and LaserSmile systems, and incorporate a semiconductor diode laser to perform soft tissue, hygiene and cosmetic procedures, including teeth whitening. Our Diolase systems serveezlase system serves the growing markets of general, cosmetic, orthodontic, and hygiene procedures. Theezlasesystem was introduced in February 2007 with an award winning design, superior ergonomics and performance characteristics over previous generations of diode lasers. It features a new pulse mode, ComfortPulse, which allows the tissue to cool between pulses resulting in improved patient comfort and reduced need for anesthesia for many common procedures. Other features include wireless foot pedal control, disposable single-use tips, and color touch screen activation with up to fifteen procedure based pre-sets. The DioLase Plus is a fully-featured, entry-level, cosmetic, soft tissuepre-sets, whitening hand piece, rechargeable battery pack and periodontal laser which has many cosmetic and soft tissue applications, including: soft tissue curettage; laser removal of diseased, infected, inflamed and necrosed soft tissue withinwall mount . We received FDA clearance for tooth whitening using the periodontal pocket; and removal of highly inflamed edematous tissue affected by disease penetration of the pocket lining and junctional epithelium. The LaserSmile laser ezlasesystem is a full-featured, cosmetic, soft tissue and periodontal laser which has many cosmetic and soft tissue applications, including: teeth whitening procedures; soft tissue curettage; laser removal of diseased, infected, inflamed and necrosed soft tissue within the periodontal pocket; and removal of highly inflamed edematous tissue affected by disease penetration of the pocket lining and junctional epithelium.in 2008.
 
We currently sell our products in over 50 countries. The FDA has cleared all of our laser systems for the applications listed below, which enables us to market the systems in the United States. Our systems have the CE Mark and may be sold in the European Union. Additionally, we have approval to sell our laser systems in Canada, Australia, New Zealand and most other Pacific Rim countries.
 


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Product
 
Selected Applications
 
Key Features
 
Waterlase Systems
    
     
Waterlase MD Turbo

Laser Technology
Solid State Crystal, Erbium, Chromium: Yttrium, Scandium, Gallium, Garnet (Er, Cr: YSGG), Laser with Air-Water Spray

Laser Wavelength
2780 nm

Power
0.1 — 8.0 Watts

Repetition Rate
10 — 50 Hz
 Hard Tissue:Cavity preparation, caries removal, roughening or etching, root canal procedurestherapy and disinfection as well as other hard tissue surgical applications.

Bone:Cutting, shaping, contouring, resection, crown lengthening (restorative), apicoectomy or amputation of root end, and other oral osseous or bone procedures.

Soft Tissue: Incision, excision and biopsy of soft tissue, frenectomy, troughing, fibroma removal, hemostasis, aphthous oral ulcers, operculectomy and other soft tissue surgical applications.

Cosmetic: Gingivectomy, gingivoplasty and crown lengthening.
 
•   Incorporated new white LED technology to Illuminated Handpiece

•   Full color touch screen Laser Control System

•   MD Flowtm laser detector to determine water level

•   Laser Operatory Management System - smaller footprint versus the Waterlase YSGG.

•   360-degree contra-angle, rotatable handpiece

•   ComfortJettm air/water delivery system

•   Windows® CE operating system

•   16 memory pre-sets

•   LaserPaltm help system
     
Waterlase YSGGC100

Laser Technology
Solid State Crystal, Erbium, Chromium: Yttrium, Scandium, Gallium, Garnet (Er, Cr: YSGG), Laser with Air-Water Spray

Laser Wavelength
2780 nm



Power
0.1 — 6.0 Watts

Repetition Rate
2010 — 30 Hz
 Hard Tissue:Cavity preparation, caries removal, roughening or etching, root canal procedures and other hard tissue surgical applications.

Bone:Cutting, shaping, contouring, resection, crown lengthening (restorative), apicoectomy or amputation of root end, and other oral osseous or bone procedures.


Soft Tissue: Incision, excision and biopsy of soft tissue, frenectomy, troughing, fibroma removal, hemostasis, aphthous oral ulcers, operculectomy and other soft tissue surgical applications.

Cosmetic: Gingivectomy, gingivoplasty and crown lengthening.
 
•   Advanced fiber delivery system

•   Ergonomic handpiece
•   Soft Touchtm front panel display with precise preset functionality
•   Extensive control panel — providing precise digital control of the air and water spray for maximum flexibility

•   Ease of maneuverability from operatory to operatory

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Product
 
Selected Applications
 
Key Features
 
Diolase SystemsDiode System
    
     
ezlaseSystem

Laser Technology
Semiconductor Diode Laser

Laser Wavelength
810 and 940 nm

Power
4.5 and 7.0 Watts
 Soft Tissue: Incision, excision and biopsy of soft tissue, frenectomy, troughing, fibroma removal and other soft tissue surgical applications.

Cosmetic: Gingivectomy, gingivoplasty and gingivoplasty.tooth whitening.

Hygiene: Curettage and sulcular debridement
 •   Color touch screen with 15 pre-sets

•   ComfortPulse

•   Wireless foot pedal

•   Totally portable, lightweight
LaserSmile System

Laser Technology
Semiconductor Diode Laser

Laser Wavelength
810 nm

Power
10.0 Watts
Soft Tissue: Incision, excision and biopsy of soft tissue, frenectomy, troughing, gingivoplasty and other soft tissue surgical applications.

Cosmetic: Gingivectomy, gingivoplasty and teeth whitening.
•   LaserSmile whitening handpiece
•   Adjustable aiming beam
•   Extensive control panel -- providing precise digital control of pulse count
•   Fully adjustable pulse modes
•   Optimized, pre-set functionality
•   Ease of maneuverability from operatory to operatory
 
Related Accessories and Disposable Products
 
We also manufacture and sell disposable products and accessories for our laser systems. Our Waterlase andezlasesystems use disposable laser tips of differing sizes and shapes depending on the procedures being performed. We also market flexible fibers and hand pieces that the dental practitioner will replace at some point after initial purchase of the laser system. For our LaserSmile ezlasesystem, we manufacture and sell teethtooth whitening gel kits.
 
Warranties
 
Our Waterlase laser systems are covered by a warranty against defects in material and workmanship for a period of up to one-year while ourezlasesystem warranty is up to two years. Our warranty covers parts and service for sales in our North American and international direct territories and parts only for international distributor sales. We sell service contracts to our end users that cover the period after the expiration of our standard warranty coverage for our laser systems. Extended warranty coverage provided under our service contracts varies by the type of system and the level of service desired by the customer. Product or accessories remanufactured, refurbished or sold by parties not authorized by BIOLASE, voids all warranties in place for such products and exempts us from liability issues relating to the use of such products.
 
Insurance
 
We currently maintain product liability insurance on a per occurrence basis with a limit of $11.0 million per occurrence and $12.0 million in the aggregate for all occurrences. The insurance is subject to various standard coverage exclusions, including damage to the product itself, losses from recall of our product and losses covered by other forms of insurance such as workers compensation. We cannot be certain that we will be able to successfully defend any claims against us, nor can we be certain that our insurance will cover all liabilities resulting from such claims. In addition, we cannot assure you that we will be able to obtain such insurance in the future on terms acceptable to us, or at all.


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Manufacturing
 
In April 2006, we moved ourOur corporate headquarters including our manufacturing facilities, from San Clemente,in Irvine, California to a newis 57,000 square foot facility in Irvine, California. We havefeet, with approximately 20,000 square feet dedicated to manufacturing and warehouse. All of our manufacturing, assembly and testing occurs at this facility. Our facility is ISO 13485:2003 certified. ISO 13485 certification provides guidelines for quality of company systems associated with the design, manufacturing, installation and servicing of company products. In addition, our U.S. facility is registered with the FDA and is compliant with the FDA’s Good Manufacturing Practice guidelines.
 
We use an integrated approach to manufacturing, including the assembly of tips, MD and diode hand pieces, fiber assemblies, laser heads, electro-mechanical subassembly, final assembly and test. We obtain components and subassemblies for our products from third party suppliers, most of which are located in the

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United States. We generally purchase components and subassemblies from a limited group of suppliers through purchase orders. We generally rely on purchase orders, and do not have written supply contracts with many of our key suppliers. Three key components used in our Waterlase system: handpieces, laser crystals, and fiber components are each supplied by separate single-source suppliers. In recent years, we have not experienced material delays from the suppliers of these three key components. However, in the event that we experience an unexpected interruption from a single source supplier, manufacturing delays, re-engineering, significant costs and sales disruptions could occur, any of which could have a material adverse effect on our operations. We are currently in the process of identifying and qualifying alternate source suppliers for our key components. There can be no assurance, however, that we will successfully identify and qualify an alternate source supplier for any of our key components or that we could enter into an agreement with any such alternate source supplier on terms acceptable to us.
 
Marketing and Sales
 
Marketing
 
We currently market our laser systems in the United States Canada, Australia, New Zealand, Latin America and various countries throughout Europe and the Pacific Rim.worldwide. Our marketing efforts are focused on increasing brand and specific product awareness among dental practitioners. We continue to explore methods to increase awareness of the benefits of our products by marketing directly to patients.
 
Dental Practitioners.We currently market our laser systems to dental practitioners through regional, national and international trade publications, events, meetings and seminars. We also use brochures, direct mailers, press releases, posters and other promotional materials, as well as print and electronic media news coverage. In 2002, we founded the World Clinical Laser Institute to formalize our efforts to educate and train dental practitioners in laser dentistry. The Institute conducts and sponsors educational programs domestically and internationally for dental practitioners, researchers and academicians, including one, two andthree-day seminars and training sessions involving in-depth presentations on the use of lasers in dentistry. In addition, we have developed relationships with research institutions, and dental schools and laboratories which use our products in training and demonstrations. We believe these relationships will increase awareness of our products.
 
Patients.  We market the benefits of our laser systems directly to patients through marketing and advertising programs, including print and broadcast media, local television news and radio spots, as well as product placements of our laser systems on popular reality television “makeover” programs. We believe that making patients aware of our laser systems and their benefits will increase demand for our products.
 
Sales
 
We currently sell our products primarily to dentists in general practice. The majority of the dentists in the United States, and the majority of our customers, are sole practitioners. We expect our laser systems to gain acceptance among periodontists, endodontists, oral surgeons and other dental specialists, as they become better aware of the clinical benefits and new treatment options available through the use of our laser systems.


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International revenue accounts for a significant portion of our total revenue. International revenue accounted for approximately 38%25%, 37%38% and 30%37% of our net revenue in 2008, 2007 2006 and 2005,2006, respectively. Net revenue in Canada, Asia, Latin America and Pacific Rim countries accounted for approximately 29%16%, 27%29%, and 19%27% of our net revenue in 2008, 2007 2006 and 2005,2006, respectively. Net revenue in Europe, Middle East and Africa (“EMEA”) accounted for approximately 9%8%, 10%9%, and 11%10% of net revenue in 2008, 2007 and 2006, and 2005, respectively.


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Net revenue by geographic location based on the location of customers was as follows (in thousands):
 
                        
 Years Ended December 31,  Years Ended December 31, 
 2007 2006 2005  2008 2007 2006 
United States $41,598  $43,674  $43,592  $48,526  $41,598  $43,674 
Europe, Middle East and Africa  6,139   7,045   6,527   5,453   6,139   7,045 
Canada, Asia, Latin America and Pacific Rim  19,152   18,981   11,861   10,646   19,152   18,981 
              
 $66,889  $69,700  $61,980  $64,625  $66,889  $69,700 
              
 
In the United States and Canada, effective September 1, 2006, we commenced selling our products through a leading U.S. dental products and equipment distributor, HSIC. We expect HSIC’s large direct sales force in the U.S. and Canada to increasingly provide high quality sales leads, while our laser specialists continue to perform technical selling and deal closing. Our sales support team is comprised of regional managers and laser specialists. Each of our laser specialists receives a base salary and commissions on sales. We plan to expand our laser specialists in territories that represent growing markets. As a result of this hybrid distribution relationship, we expect to be able to obtain greater leverage, enabling us to limit the number of additional laser specialists we must add in the future. As part of this agreement, HSIC purchases products from us at negotiated distributor pricing, and invoices the customer directly at the customer’s purchase order price.
 
In August 2006, we entered into a distribution agreement, or License and Distribution Agreement, with Henry Schein, Inc., or Henry Schein, a large distributor of healthcare products to office-based practitioners, pursuant to which we granted Henry Schein the exclusive right to distribute our complete line of dental laser systems, accessories and services in the United States and Canada. The agreement had an initial term of three years, following which it would automatically renew for an additional period of three years, provided that Henry Schein achieved its minimum purchase requirements.
 
On May 9, 2007, we entered intoAddendum No. 1 to License and Distribution Agreementwith Henry Schein, which addendum was effective as of April 1, 2007 and modified the License and Distribution Agreement entered into with Henry Schein on August 8, 2006, to add the terms and conditions under which Henry Schein has the exclusive right to distribute our newezlasediode dental laser system in the United States and Canada. In the Addendum, separate minimum purchase requirements are established for theezlasesystem. If Henry Schein has not met the minimum purchase requirement for any12-month period ending on March 31, we will have the option, upon 30 days written notice, to (i) convertezlasedistribution rights to a non-exclusive basis for a minimum period of one year, after which period we would have the option to withdrawezlase distribution rights, and (ii) reduce the distributor discount onezlase products.
 
On March 3, 2008, we entered into a second addendum to the Henry Schein agreement that modifies certain terms of the initial agreement as amended. Pursuant to amendment 2 to the agreement, Henry Schein is obligated to meet certain minimum purchase requirements and is entitled to receive incentive payments if certain purchase targets are achieved. If Henry Schein has not met the minimum purchase requirements, we will have the option to (i) shorten the remaining term of the Agreement to one year, (ii) grant distribution rights held by Henry Schein to other persons (or distribute products ourselves), (iii) reduce certain discounts on products given to Henry Schein under the Agreement and (iv) cease paying future incentive payments. Additionally, under certain circumstances, if Henry Schein has not met the minimum purchase requirements, we have the right to purchase back the exclusive distributor rights granted to Henry Schein under the agreement. We also agreed to actively promote Henry Schein Financial Services as our exclusive leasing and financing partner.
On December 23, 2008, we entered into a letter agreement with HSIC which extended the initial term of the License and Distribution Agreement to December 31, 2010.
On February 27, 2009, we entered into a letter agreement with HSIC which adjusted the initial term of the License and Distribution Agreement through March 31, 2010.(See Liquidity and Capital Resources) This amendment includes certain minimum purchase requirements through the term of the agreement. HSIC also has the option to extend the term of the Agreement for two additional one-year terms which require certain


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minimum purchase requirements. In addition, HSIC will become our distributor in certain international countries including Germany, Spain, Australia and New Zealand and will be permitted to distribute our products in those additional markets where we do not have current distribution agreements in place.
International Direct Sales.  We sellThrough 2008, we sold products in Germany, Spain, Australia and New Zealand through direct sales forces from our company sales and service locations in those respective countries. In the first quarter of 2009, we began transitioning sales in these countries from direct sales to distribution through HSIC.
 
International Distributors.  Except for sales in Canada, Germany, Spain, Australia and New Zealand, weWe sell products outside the United States primarily through a network of independent distributors located in Europe, Latin America and Asia. Generally, our agreements require the distributor to sell our laser systems exclusively.distributors. Our distributors purchase systems and disposables from us at wholesale dealer prices and resell them to dentists in their sales territories. All sales to distributors are final and we can terminate our arrangements with dealers and distributors for cause or non-performance. In some select territories we have granted certain distributors the right to be our exclusive distributor in that territory. These distributors are generally required to satisfy certain minimum purchase requirements to maintain exclusivity.
 
Customer Service.  We provide maintenance and support services through our support hotline, field and factory service technicians and our network of factory-trained third-party service technicians. We currently provide maintenance and support services in the United States Canada, Germany, Spain, Australia and New ZealandCanada through our employee service technicians. We provide parts to HSICdistributors at no additional charge for products covered under warranty. We maintain a network of service technicians trained at our factory locations, who provide maintenance and support services in all other countries where we do business. Our international distributors are responsible for providing maintenance and support services for products sold by them. We are in the process of transitioning service in Germany, Spain, Australia and New Zealand to HSIC. We provide parts to distributors at no additional charge for products covered under warranty.
 
Financing Options.  Many dentists finance their purchases through third-party leasing companies, banks, or lessors. Internationally in our direct markets, the dentist first enters into a purchase order with us and subsequently enters into a lease agreement with the lessor. The lessor provides us with a confirmation of lease acceptance and authorization to invoice them for the product. We receive payment in full for the product from the lessor at terms ranging from net zero to net 30 days. In the United States and Canada, third party customers enter into a lease with a lessor who purchases the product from HSIC. We are not party to the lease. The lessee pays the lessor in installments. Weinstallments, we do not bear the credit risk that the dentist might not make payments. The leasing companies and banks do not have recourse to us for a dentist’s failure to make payments, nor do we have any obligation to take back the product at the end of the lease.
 
Through August 31, 2006, we were party to an agreement with National Technology Leasing Corporation, or NTL, pursuant to which we had designated NTL as our Preferred Leasing Provider. Effective September 1, 2006, because of our distribution agreement with HSIC, we no longer sell our products to NTL.
Engineering and Product Development
 
Engineering and development activities are essential to maintaining and enhancing our business. We believe our engineering and development team has demonstrated its ability to develop innovative products that meet evolving market needs. Our research and development group consists of approximately 1816 individuals with medical device and laser development experience and other relevant backgrounds, the majority of whom have degrees in physics or engineering, including two Ph.Ds. During the years ended December 31, 2008, 2007 2006 and 2005,2006, our engineering and development expenses were approximately $5.6 million, $5.1 million and $4.9 million, and $6.4 million, respectively. Engineering and development expense for the year ended December 31, 2005 included $2.0 million for the costs of acquiring a fully paid license to use certain patent rights from SurgiLight, Inc. in the fields of presbyopia and ophthalmology. Our current engineering and development activities are focused on improving our existing products and technology and extending our product range in order to provide dental practitioners and patients with less painful and clinically superior laser systems. Examples of improvements being pursued include faster cutting speed, ease of use, less need for anesthesia injections, and an expanded portfolio of consumable products for use with our laser systems. We also devoted resources in 2006 to develop a new, compact, state-of-the-art diode laser system calledezlase, for which we received FDA 510(k) clearance in January 2007. We started marketing and selling theezlasesystem in February 2007. In February 2008, we received FDA 510(k) clearance for root canal disinfections using our Waterlase systems. In February 2009, we announced the release of our Waterlase MD Turbo All-Tissue Dental Laser System.


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We also devote engineering and developments resources toward markets outside of dentistry in which we might exploit our technology platform and capabilities. One such market is ophthalmology, where we have made investments in intellectual property and clinical studies while pursuing testing of our lasers in presbyopia procedures. In July 2006, we received 510(k) clearance from the FDA for our Oculase MD laser, for general ophthalmic soft tissue surgical indications such as incision, excision, vaporization and coagulation of ocular tissue and tissue surrounding the eye and orbit. We expect this approval will facilitate our continued research into possible ophthalmology applications. Besides ophthalmology, we believe our laser technology and developments capabilities could be applicable in the pain management, aesthetic/dermatology, veterinary and consumer products markets. For example, in February 2008, we received 510(k) clearance from the FDA to allow us to


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market our Waterlase MD Derm device for use in certain specific dermatological applications as well as general and plastic surgery. The new FDA cleared indications include incision, excision, ablation, vaporization and coagulation of dermatologic tissues including epidermal nevi, cheilitis, keloids, verrucae, skin tags, keratosis, scar revision, debulking of tumors, cysts, diagnostic biopsy and skin resurfacing.
 
In June 2006 we entered into a binding letter of intent with The Procter and Gamble Company, or P&G, and in January 2007 completed a definitive agreement pursuant to which we granted P&G rights to certain of our intellectual property for use in the development of consumer products in a number of different areas. Any consumer products developed and sold by P&G which are based upon the intellectual property we licensed would result in royalty income to us.
 
Intellectual Property and Proprietary Rights
 
We rely, in part, on a combination of patents, trademarks, trade secrets, copyrights and other intellectual property rights to protect our technology. We have approximately 112134 issued patents and more than 210189 pending patent applications. Approximately two-thirds of our patents were granted in the United States, and the rest were granted in Europe and other countries around the world. Our patents cover the use of laser technologies and fluids for dental, medical, cosmetic and industrial applications, as well as laser characteristics, accessories, future technological developments, fluid conditioning and other technologies and methods for dental, medical and aesthetic applications. We have numerous patent applications pending worldwide and plan to apply for other patents in the future as we develop new technologies. While we hold a variety of patents that cover a broad range of technologies and methods, approximately 70% of these patents provide market protection for our core technologies incorporated in our laser systems, including the Waterlase systems, which accounted for approximately 62% of our net revenue in 2008, approximately 68% of our net revenue in 2007 and approximately 79% of our net revenue in 2006 and approximately 83% of our net revenue in 2005.2006. Existing patents related to our core technology, which are at various stages of being incorporated into our products, are scheduled to expire as follows: two in 2008, seventeenfifteen in 2009, eleventwelve in 2010, and nineeight in 2011 and ten in 2012 with the majority having expiration dates ranging from 20122013 to 2022.2023. With more than 210189 patent applications pending, we expect the number of new grants to exceed the number of patents expiring. We do not expect the expiration of the expired or soon-to-expire patents to have a material effect on our business.
 
In January 2005, we acquired the intellectual property portfolio of Diodem, LLC, or Diodem, consisting of certain U.S. and international patents of which four were asserted against us, and settled the existing litigation between us and Diodem, for consideration of $3.0 million in cash, 361,664 shares of common stock (valued at the common stock fair market value on the closing date of the transaction for a total of approximately $3.5 million) and a five-year warrant exercisable into 81,037 shares of common stock at an exercise price of $11.06 per share. In addition, 45,208 additional shares of common stock were placed in escrow, to be released to Diodem, if certain criteria specified in the purchase agreement were satisfied in or before July 2006. In JulyAs of March 31, 2006, we releaseddetermined that it was probable that these shares of common stock would be released from escrow.escrow in or before July 2006. Accordingly, we recorded a patent infringement legal settlement charge of approximately $348,000 in the year ended December 31, 2006. In July 2006, we released these shares from escrow. The common stock issued, the escrowedescrow shares of common stock and the warrant shares havehad certain registration rights.rights, and a Registration Statement onForm S-3 was filed with the Securities and Exchange Commission, or SEC, to register for sale any of these shares which remained unsold. This Registration Statement became effective on April 17, 2007. The total consideration had an estimated value of approximately $7.4 million including the value of the patents acquired in January 2005. As of December 31, 2004, we accrued approximately $6.4 million for the settlement of the existing litigation with $3.0 million included in current liabilities and $3.4 million recorded as a long-term liability. In January 2005, we recorded an intangible asset of $0.5 million representing the estimated fair value of the intellectual property acquired. The estimated fair value of the patents was determined with the assistance of an


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independent valuation expert using a relief from royalty and a discounted cash flow methodology. As a result of the acquisition, Diodem immediately withdrew its patent infringement claims against us and the case was formally dismissed on May 31, 2005. We did not pay, and have no obligation to pay, any royalties to Diodem on past or future sales of our products, but we agreed to pay additional consideration if any of the acquired patents or certain other patents held by us are licensed to a third party by a certain date. In order to secure performance by us of these financial obligations, the parties entered into an intellectual property security agreement, pursuant to which, subject to the rights of


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existing creditors and the rights of any future creditors to the extent provided in the agreement, we granted Diodem a security interest in all of their right,rights, title and interest in the royalty patents. In September 2007, Diodem filed a motion with the United States DistrictU.S.District Court in the Central District of California requesting that the original case be reopened for limited discovery concerning Diodem’s claims that we breached various of our obligations and representations in the settlement agreement and seeking damages in the range of $3.85 million to $5.2 million plus costs and attorneys fees incurred in recovering said alleged damages. The District Court denied Diodem’s motion finding, in part, that if Diodem wishes to pursue claims for breach of the settlement agreement, it must file a new lawsuit for breach of contract. On February 20, 2008, Diodem filed a lawsuit for breach of the settlement agreement in Los Angeles Superior Court, naming us and a wholly-owned subsidiary, BL Acquisition II, Inc. as defendants. The complaint asserts two claims, both alleging breaches of the Agreement. Diodem seeks damages of nonot less than $4.0 million. We intendOn April 28, 2008, together with BL Acquisition II, Inc., we filed demurrers and a motion to vigorously defendstrike that, in essence, requests the court to dismiss Diodem’s claims.complaint. On June 20, 2008 the Court denied the demurrers and the motion and on July 21, 2008 we filed an answer to the complaint denying the allegations. On October 15, 2008 the lawsuit was dismissed with prejudice by Diodem pursuant to a settlement agreement among the parties which resolves all claims in the litigation and provides that we will make four payments to Diodem totaling approximately $950,000 through 2010, of which $85,000 will be paid by our liability insurance carriers. In the settlement agreement, we denied any wrongdoing. The settlement agreement contains confidentiality provisions that limit disclosure of the terms of the settlement except as required by SEC rule or regulation, under GAAP or pursuant to court order or law. Related to this matter, we incurred approximately $1.2 million in charges for the settlement and associated legal fees in the third quarter ended September 30, 2008, which reflected all the settlement payments to be made over the next two years.
 
In March 2005, we acquired a fully-paid license related to patents owned or licensed by SurgiLight, Inc. As a result of the acquisition, we received fully-paid license rights in the U.S. and international markets to patents in the fields of presbyopia and ophthalmology.
 
We require our employees, consultants and advisors to execute confidentiality agreements in connection with their employment, consulting or advisory relationships with us. We also require our employees, consultants and advisors who we expect to work on our products to agree to disclose and assign to us all inventions conceived during their term of employment or contract, using our property, or which relate to our business. Despite measures taken to protect our intellectual property, unauthorized parties may attempt to copy aspects of our products or to obtain and use information that we regard as proprietary, or our competitors may independently develop similar technologies.
 
The medical device industry is characterized by the existence of a large number of patents and frequent litigation based on allegations of patent infringement. Patent litigation can involve complex factual and legal questions and its outcome is uncertain. Our success will depend in part on our not infringing patents issued to others including our competitors and potential competitors. As the number of entrants into our market increases, the risk of an infringement claim against us grows. While we attempt to ensure that our products and methods do not infringe other parties’ patents and proprietary rights, our competitors may assert that our products, and the methods we employ, are covered by U.S. or international patents held by them. In addition, our competitors may assert that future products and methods we may market infringe their patents.
 
We currently own registered trademarks for BIOLASE®, MillenniumZipTip®, Pulsemasterezlase®, eztips®, MD Flow® and Waterlase®. Trademarks are registered trademarks of BIOLASEBiolase Technology, Inc. include LaserSmiletm, and Diolasetm, Diolase Plustm,ezlasetm, Comfort Jettm, HydroPhotonicstm, LaserPaltm, MD FlowComfortpulsetm, YSGG Waterlase MD Goldtm, Soft TouchWCLItm, World Clinical Laser Institutetm, Waterlase MDtm, HydroBeamtm, SensaTouchtm and Oculase, Occulasetm. and C100tm are trademarks of BIOLASE Technology, Inc.
 
Competition
 
We compete with a number of companies that market traditional dental products, such as dental drills, as well as other companies that market laser technologies in dental and other medical markets. In the domestic hard tissue dental market, we believe our Waterlase systems primarily compete with laser systems manufactured by Hoya ConBio, a subsidiary of Hoya Photonics, a large Japanese manufacturer primarily of optics and


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crystals, Lares, the U.S. distributor of Fotona, a European company Syneron and OpusDent Ltd., a subsidiary of Lumenis, an Israeli company.Syneron. In the international market, our Waterlase systems compete primarily with products manufactured by several additional companies, including Fotona, KaVo and Deka Dental Corporation.
 
Our Waterlase systems also compete with non-laser based systems, including traditional high and low-speed dental drills and air abrasion systems that are used for dental procedures. Our DiolaseDiode systems, includingezlase, compete with other semiconductor diode lasers, as well as with scalpels, scissors and a variety of other cutting tools that have been traditionally used to perform soft tissue procedures. In the market for teeth


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whitening, our LaserSmile ezlasesystem competes with other products and instruments used by dentists, as well as teeth whitening strips and other over-the-counter products.
 
Traditional and commonly used cutting tools are less expensive for performing dental procedures. For example, a high speed drill or an electrosurge device can be purchased for less than $1,000 each. In addition, our systems are not designed to perform certain functions that high speed drills can perform, such as cutting metal fillings and certain polishing and grinding functions. High speed drills will still be needed for these functions, and our systems are not intended to replace all applications of the high speed drill.
 
In general, our ability to compete in the market depends in large part on our:
 
 • acceptance by leading dental practitioners;
 
 • product performance;
 
 • product pricing;
 
 • intellectual property protections;
 
 • customer support;
 
 • timing of new product research; and
 
 • development of successful national and international distribution channels.
 
Some of the manufacturers that develop competing laser systems have significantly greater financial, marketing and technical resources than we do. In addition, some competitors have developed, and others may attempt to develop, products with applications similar to those performed by our laser systems.
 
Because of the large size of the potential market for our products, we anticipate that new or existing competitors may develop competing products, procedures or clinical solutions. These products, procedures or solutions could prove to be more effective, safer or less costly than procedures using our laser systems. The introduction of new products, procedures or clinical solutions by competitors may result in price reductions, reduced margins or loss of market share and may render our products obsolete.
 
Government Regulation
 
Our products are medical devices. Accordingly, our product development, testing, labeling, manufacturing processes and promotional activities are regulated extensively by government agencies in the United States and other countries in which we market and sell our products. We have clearance from the FDA to market our laser systems for specific clinical indications in the United States. We have the clearances necessary to sell our products in Canada. We also have the necessary CE Marks or clearances to sell our laser systems in the European Union and other international markets.
 
United States
 
In the United States, the FDA regulates the design, manufacture, distribution, quality standards and marketing of medical devices. We have clearance from the FDA to market our Waterlase and Diode systems in the United States for dental procedures on both adult and pediatric patients. In 1998, we received FDA clearance to market the Millennium®, the earlier generation of our current Waterlase system, for certain dental hard tissue applications. This clearance allowed us to commence domestic sales and marketing of our technology for hard and soft tissue applications. During 1999 and 2000, to meet the demand for soft-tissue and


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cosmetic dentistry applications, we designed a semiconductor diode laser system, which is now marketed as our LaserSmile system. We received FDA clearance to market the system for a variety of soft tissue medical applications in September 1999. In 2001, we received FDA clearance to market the LaserSmile system for cosmetic teeth whitening. In October 2003, the LaserSmile received clearance for periodontal procedures for both early and advanced stages of periodontal disease.
 
In 2002, 2003, 2004, 2008 and in January 2004,2009, our Waterlase system became the first laser system to receive FDA clearance for several new types of dental procedures. We also received clearance in 2002 to market this system


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for cutting, shaving, contouring and resection of oral osseous tissues, or bone. In January 2003, we received FDA clearance to market the Waterlase system for use in apicoectomy surgery, a procedure for root canal infections and complications that includes cutting gum, bone (to access the infected area) and the apex of the tooth to access the infected area. The clearance also encompasses flap surgical procedures. Flaps are frequently created in conjunction with many procedures, including periodontal, implant placement and recovery, extraction of wisdom teeth, and exposure of impacted teeth. In January 2004, our Waterlase system received FDA clearance for several new bone, periodontal and soft tissue procedures, including removal of bone to correct defects and create physiologic contours of bone, resection of bone to restore architecture, resection of bone for grafting, preparing full, partial and split thickness flaps for periodontal surgery and removal of granulation tissue from bony defects. In February 2008, we received 510(k) clearance from the FDA for root canal disinfection using our Waterlase MD. In June 2008, our Waterlase C100 All-Tissue Dental Laser System received FDA 510(k) clearance. In February 2009, we received FDA 510(k) clearance for our Waterlase MD Turbo All-Tissue Dental Laser System.
 
In addition, in July 2006, we received 510(k) clearance from the FDA for our Oculase MD laser for general ophthalmic soft tissue surgical indications such as incision, excision, vaporization and coagulation of ocular tissue and tissue surrounding the eye and orbit. In FebruaryJanuary 2008, we received 510(k) clearance from the FDA to allow us to market our Waterlase MD Derm device for use in dermatological applications as well as general and plastic surgery.
 
In January 2007, we received 510(k) clearance from the FDA to marketezlase, our new soft tissue diode laser system. In November 2008, we received FDA 510(k) clearance to market a 10W version of our ezlase. In December 2008, we received FDA 510(k) clearance for tooth whitening using ourezlasesystem.
 
As we develop new products and applications or make any significant modifications to our existing products or labeling, we will need to obtain the regulatory clearances or approvals necessary to market such products for dental, cosmetic and other medical procedures in our target markets.
 
There are two principal methods by which FDA regulated devices may be marketed in the United States: 510(k) clearance and pre-market approval, or PMA. To obtain 510(k) clearance, we must demonstrate that our device is substantially equivalent to a previously cleared 510(k) device or a device that was in commercial distribution before May 28, 1976 for which the FDA has not yet called for the submission of PMA applications. By statute and regulation, the FDA is required to clear, deny or request additional information on a 510(k) request within 90 days of submission of the application. As a practical matter, 510(k) clearance often takes significantly longer. Domestic marketing of the product must be deferred until clearance is received from the FDA. In some instances, an Investigational Device Exemption, or an IDE, is required for clinical trials for a 510(k) clearance. If a request for 510(k) clearance is turned down by the FDA, then a PMA application may be required. We intend to utilize the 510(k) notification procedure whenever possible. To date, all of our regulated products have qualified for 510(k) clearance.
 
After a device receives 510(k) clearance, any modification that could significantly affect its safety or effectiveness, or that would constitute a major change in its intended use, will require a new 510(k) clearance, or could require a PMA application. The FDA requires each manufacturer to make this determination initially, but the FDA can review any such decision and can disagree with a manufacturer’s determination. If the FDA disagrees with a manufacturer’s determination that a new clearance or approval is not required for a particular modification, the FDA can require the manufacturer to cease marketingand/or recall the modified device until 510(k) clearance or PMA is obtained. We have made and plan to continue to make additional product


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enhancements to our laser systems that we believe do not require new 510(k) clearances. We cannot assure you that the FDA will agree with our determinations in these instances.
 
A PMA application is required for a device that does not qualify for clearance under 510(k) provisions. The FDA is required by law to review a PMA application within 180 days. As part of the approval of a PMA application, the FDA typically requires human clinical testing to determine safety and efficacy of the device. To conduct human clinical testing, typically the FDA must approve an IDE. To date, none of our products have required a PMA to support marketing approval.
 
After a device is placed on the market, numerous regulatory requirements apply. These include:
 
 • quality system regulations, or QSRs, which require manufacturers, including third-party manufacturers, to follow stringent design, testing, control, documentation and other quality assurance procedures during all aspects of the manufacturing process;


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 • labeling regulations, which prohibit the promotion of products for uncleared, unapproved or “off label” uses;
 
 • medical device reporting regulations, which require that manufacturers report to the FDA if their device may have caused or contributed to a death or serious injury or malfunctioned in a way that would likely cause or contribute to a death or serious injury if it were to recur;
 
 • correction and removal regulations, which require that manufacturers report to the FDA any corrections to or removals of distributed devices that are made to reduce a risk to health; and
 
 • post-market surveillance regulations, which apply when necessary to protect the public health or to provide additional safety and effectiveness data for the device.
 
We will need to invest significant time and other resources to ensure ongoing compliance with FDA quality system regulations and other post market regulatory requirements.
In August 2006, our Irvine, California facility was inspected by the Los Angeles District Office of the FDA, and on September 7, 2006 we received a Warning Letter dated September 5, 2006 from the FDA. The Warning Letter indicated that certain aspects of our quality system were not in conformance with the FDA’s quality system regulations (QSR) for medical devices. The Warning Letter instructed us to take prompt action to address the concerns and stated that failure to do so may result in regulatory action being initiated by the FDA. We prepared a response letter to the FDA which was submitted on September 18, 2006. On September 29, 2006, we received a letter from the FDA stating that it had completed its review of our response to the Warning Letter dated September 5, 2006 and indicating that our response adequately addressed the FDA’s concerns. We are in the process of completing the review and correction of our quality system and are working closely with the Los Angeles district FDA office. We intend to clear the Warning Letter status during our next FDA audit. Until a re-audit is completed by the FDA, however, and we are cleared of all Warning Letter issues, we will continue to operate under a Warning Letter status.
 
We have registered with the FDA as a medical device manufacturer and we have obtained a manufacturing license from the California Department of Health Services. Compliance with regulatory requirements is assured through periodic, unannounced facility inspections by the FDA and the Food and Drug Branch of the California Department of Health Services, and these inspections may include the manufacturing facilities of our subcontractors.
 
Failure to comply with applicable regulatory requirements can result in an enforcement action by the FDA, which may include any of the following sanctions:
 
 • fines, injunctions and civil penalties;
 
 • recall or seizure of our products;
 
 • operating restrictions, partial suspension or total shutdown of production;
 
 • refusing our request for 510(k) clearance of or PMA application for new products;
 
 • withdrawing 510(k) clearance or PMA applications that are already granted; and
 
 • criminal prosecution.
 
We are also subject to regulation under the Radiation Control for Safety and Health Act of 1968, or the Safety Act, administered by the FDA. The Safety Act regulates the energy emissions of light and sound and electronic waves from electronic products. Regulations implementing the Safety Act require a laser manufacturer to file new product and annual reports, to maintain quality control, product testing and sales records, to distribute product operation manuals, to incorporate certain design and operating features in lasers sold to end users and to certify and label each laser sold to end users as one of four classes of lasers based on the level of radiation emitted from the laser. In addition, various warning labels must be affixed to the product and certain protective features must be installed, depending upon the class of product.


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Various state dental boards are considering the adoption of restrictions on the use of lasers by dental hygienists. Approximately 35 states currently allow dental hygienists to use lasers to perform certain dental procedures. In addition, dental boards in a number of states are considering educational requirements regarding the use of dental lasers. The scope of these restrictions and educational requirements is not now known, and they could have an adverse effect on sales of our laser-based products.
 
International
 
Foreign sales of our laser system products are subject to the regulatory requirements of the foreign country or, if applicable, the harmonized standards of the European Union. These regulatory requirements vary widely among countries and may include technical approvals, such as electrical safety, as well as demonstration of clinical efficacy. We have a CE Mark for our Waterlase MD, Waterlase, LaserSmile andezlase Diode systems, which permits us to commercially distribute these systems throughout the European Union. We rely on export certifications from the FDA to comply with certain regulatory requirements in several foreign jurisdictions, such as New Zealand, South Korea and countries in Latin America. We also received clearance to market our Waterlase,ezlase and LaserSmile systems in Canada and Australia.jurisdictions. We are currently working to meet certain foreign country regulatory requirements for certain of our products, including those in Japan. There can be no assurance that additional approvals in Japan or elsewhere will be obtained.
 
Other Regulatory Requirements
 
In addition to the regulatory framework for product clearances and approvals, we are subject to extensive and frequently changing regulations under many other laws administered by U.S. and foreign governmental agencies on the national, state and local levels, including requirements regarding occupational health and safety and the use, handling and disposing of toxic or hazardous substances.
 
Third Party Reimbursement
 
Our products are generally purchased by dental or medical professionals who have various billing practices and patient mixes. Such practices range from primarily private pay to those who rely heavily on third party payors, such as private insurance or government programs. In the United States, third party payors review and frequently challenge the prices charged for medical services. In many foreign countries, the prices for dental services are predetermined through government regulation. Payors may deny coverage and reimbursement if they determine that the procedure was not medically necessary, such as a cosmetic procedure, or that the device used in the procedure was investigational. We believe that most of the procedures being performed with our current products generally are reimbursable, with the exception of cosmetic applications, such as tooth whitening. For the portion of dentists who rely heavily on third party reimbursement, the inability to obtain reimbursement for services using our products could deter them 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 could act as disincentives for capital investments by dental and medical professionals and could have a negative impact on our business and results of operations.
 
Employees
 
At December 31, 2007,2008, we employed approximately 216180 people, of which there were 8461 in manufacturing and quality and control, 1816 in research and development, 6150 in sales and sales support, 3228 in customer technical support and 2125 in administration. Subsequent to December 31, 2008, we continued the implementation of our cost reduction measures including beginning the wind down of our foreign direct operations. As of February 28, 2009 we employed approximately 146 people. Our employees are not represented by any collective bargaining agreement and we believe our employee relations are good.
 
Financial Information
 
The additional financial information required to be included in this Item 1 is incorporated herein by reference to Part IV, Item 15 of this report.


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Available Information
 
Copies of our Annual Report onForm 10-K, Quarterly Reports onForm 10-Q, Current Reports onForm 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) are available free of charge through our Web site (www.biolase.com) as soon as reasonably practicable after we electronically file the material with, or furnish it to, the SEC. You may read and copy any document we file with the SEC at the SEC’s Public Reference Room at 100 F Street N.E., Washington, D.C. 20549. Please call the SEC at1-800-SEC-0330 for further information on the Public Reference Room. Our SEC filings are also available to the public at the SEC’s web site athttp://www.sec.gov.
 
PART I
 
Item 1A.  Risk Factors
 
TheRisk factors describedwhich could cause actual results to differ from our expectations and which could negatively impact our financial condition and results of operations are discussed below representand elsewhere in this report. If any of the following risks actually occurs, our principal risks. Except as otherwise indicated,business, financial condition, results of operations and our future growth prospects could be materially and adversely affected. Under these factorscircumstances, the trading price of our common stock could decline, and you may lose all or maypart of your investment. Further, additional risk not occur and we are not in a positioncurrently known to express a view on the likelihood of any such factor occurring. Other factors may exist that we do not consider to be significant based on information that is currently availableus or that we currently believe are not currently able to anticipate.immaterial also may impair our business, operations, liquidity and stock price materially and adversely.
 
Risks Relating to Our Business
 
We may have difficulty achieving profitability and may experience additional losses.
 
We have an accumulated deficit of $80.6$89.7 million at December 31, 2007.2008. We recorded net losses of $7.3$9.1 million and $4.7$7.3 million for the years ended December 31, 2008 and 2007, and 2006, respectively. We also experienced a loss in fiscal 2005 of $17.5 million due partly to professional fees related to the 2004 audit and restated financial statements and our compliance with the Sarbanes-Oxley Act, $2.0 million related to the purchase of a license to use certain patent rights from SurgiLight, including the transaction costs and increased expenses as a result of quality issues with our products. In order to achieve profitability, we must control our costs and increase net revenue through new sales. Failure to increase our net revenue and decrease our costs could cause our stock price to decline.
The general slowdown of the economy and uncertainties in the global financial markets, our reliance on a primary distributor, and our lack of financing may adversely affect our liquidity, operating results, and financial condition.
We are substantially dependent on our major distributor and the continued performance of this distributor to make committed purchases of our products and associated consumables under our distribution agreement, and the receipt of cash in connection with those purchases, is essential to our liquidity. In addition, on February 5, 2009, our loan agreement with our bank was terminated. We presently do not have any debt financing in place with a bank or other financial institution. The absence of such debt financing availability could adversely impact our operations. Our obligations and operating requirements may require us to seek additional funding through public or private equity or debt financing, and we have no commitments for financing of any kind at this time. We may not be able to obtain requisite financing if necessary to fund existing obligations and operating requirements on acceptable terms or at all.
Our business is sensitive to changes in general economic conditions. Financial markets inside the United States and internationally have experienced extreme disruption in recent months, including, among other things, extreme volatility in security prices, severely diminished liquidity and credit availability and declining valuations of investments. These disruptions are likely to have an ongoing adverse effect on the world economy. A continuing economic downturn and financial market disruptions may:
• reduce demand for our products and services, increase order cancellations and result in longer sales cycles and slower adoption of new technologies;
• increase the difficulty of collecting accounts receivable and the risk of excess and obsolete inventories;


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• increase price competition in our served markets;
• result in supply interruptions, which could disrupt our ability to produce our products.
 
Dentists and patients may be slow to adopt laser technologies, which could limit the market acceptance of our products.
 
Our dental laser systems represent relatively new technologies in the dental market. Currently, only a small percentage of dentists use lasers to perform dental procedures. Our future success will depend on our ability to increase demand for our products by demonstrating the potential performance advantages of our laser systems over traditional methods of treatment and over competitive laser systems to a broad spectrum of dentists and patients. Historically, we have experienced long sales cycles because dentists have been, and may continue to be, slow to adopt new technologies on a widespread basis. As a result, we generally are required to invest a significant amount of time and resources to educate customers about the benefits of our products in comparison to competing products and technologies before completing a sale, if any.
 
Factors that may inhibit adoption of laser technologies by dentists include cost and concerns about the safety, efficacy and reliability of lasers. The list selling price of our Waterlase MD laser system is in excess of $84,000, which is substantially more than the cost of competing non-laser technologies. In order to invest in a Waterlase MD laser system, a dentist generally would need to invest time to understand the technology, the benefits of such technology with respect to clinical outcomes and patient satisfaction, and the return on investment of the product. Absent an immediate competitive motivation, a dentist may not feel compelled to invest the time required to learn about the potential benefits of using a laser system. We also believe that clinical evidence supporting the safety and efficiency of our products, as well as recommendations and support of our laser systems by influential dental practitioners, are important for market acceptance and adoption. In addition, economic pressure, caused for example by an economic slowdown, changes in healthcare


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reimbursement or by competitive factors in a specific market, may make dentists reluctant to purchase substantial capital equipment or invest in new technologies. Patient acceptance will depend on the recommendations of dentists and specialists, as well as other factors, including without limitation, the relative effectiveness, safety, reliability and comfort of our systems as compared to other instruments and methods for performing dental procedures. The failure of dental lasers to achieve broad market acceptance would limit sales of our products and have an adverse effect on our business and results of operations.
 
Fluctuations in our revenue and operating results on a quarterly and annual basis could cause the market price of our common stock to decline.
 
Our revenue and operating results fluctuate from quarter to quarter due to a number of factors, many of which are beyond our control. Historically, we have experienced fluctuations in revenue from quarter to quarter due to seasonality. Revenue in the first quarter typically is lower than average and revenue in the fourth quarter typically is stronger than average due to the buying patterns of dental professionals. In addition, revenue in the third quarter may be affected by vacation patterns which can cause revenue to be flat or lower than in the second quarter of the year. If our quarterly revenue or operating results fall below the expectations of investors, analysts or our previously stated financial guidance, the price of our common stock could decline substantially. Factors that might cause quarterly fluctuations in our revenue and operating results include, among others, the following:
 
 • variation in demand for our products, including seasonality;
 
 • our ability to research, develop, market and sell new products and product enhancements in a timely manner;
 
 • our ability to control costs;
 
 • our ability to control quality issues with our products;
 
 • regulatory actions that impact our manufacturing processes;
 
 • the size, timing, rescheduling or cancellation of orders from distributors;


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 • the introduction of new products by competitors;
 
 • the length of and fluctuations in sales cycles;
 
 • 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;
 
 • general economic conditions including the availability of credit for our existing and potential customer base to finance purchases;
 
 • the mix of our domestic and international sales and the risks and uncertainties associated with international business;
 
 • costs associated with any future acquisitions of technologies and businesses;
 
 • limitations on our ability to use net operating loss carryforwards under the provisions of Internal Revenue Code Section 382 and similar state laws;
 
 • developments concerning the protection of our intellectual property rights;
 
 • catastrophic events such as hurricanes, floods and earthquakes, which can affect our ability to advertise, sell and distribute our products, including through national conferences held in regions in which these disasters strike; and
 
 • global economic, political and social events, including international conflicts and acts of terrorism.


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The expenses we incur are based, in large part, on our expectations regarding future net revenue. In particular, we expect to continue to incur substantial expenses relating to the marketing and promotion of our products. Since many of our costs are fixed in the short term, we may be unable to reduce expenses quickly enough to avoid losses if we experience a decrease in net revenue. Accordingly, you should not rely on quarter-to-quarter comparisons of our operating results as an indication of our future performance.
 
Any failure to significantly expand sales of our products will negatively impact our business.
 
We currently handle a significant portion of the marketing, distribution and sales of our products, augmented by our distribution relationship with Henry Schein, Inc. In order to achieve our business objectives, we intend to continue to expand our marketing and sales efforts on a domestic and international basis. We face significant challenges and risks in expanding, training, managing and retaining our sales and marketing teams, including managing geographically dispersed operations. In addition, we rely on independent distributors to market and sell our products in a number of countries outside of the United States. These distributors may not commit the necessary resources to effectively market and sell our products, and they may terminate their relationships with us at any time with limited notice. If we are unable to expand our sales and marketing capabilities domestically and internationally, or if the relationship with Henry Schein, Inc. does not produce the expected results, we may not be able to effectively commercialize our products, which could harm our business and cause the price of our common stock to decline.
 
Our distributors may cancel, reduce or delay orders of our products, any of which could reduce our revenue.
 
We employThrough 2008, we employed direct sales representatives in certain European countries, Australia and New Zealand; however,Zealand. In the first quarter of 2009, we began the process of transitioning our sales organizations in those countries to distributors. We also rely on independent distributors for a substantial portion of our sales in other countries outside of the United States and Canada. For the year ended December 31, 2008, revenue from international distributors accounted for approximately 13% of our total revenue. For the year ended December 31, 2007, revenue from international distributors accounted for approximately 19% of our total sales, and one distributor accounted for more than 10% of our revenue. For the year ended December 31, 2006, revenue from international distributors accounted for approximately 23% of our total sales, and one distributor accounted for more than 10% of our revenue. Our ability to maintain or increase our revenue will depend in large part on our success in developing and maintaining relationships with our distributors and upon the efforts of these third parties. Our distributors have significant discretion in determining the efforts and resources they apply to the sale of our products. Our distributors may not commit


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the necessary resources to market and sell our products to the level of our expectations and, regardless of the resources they commit, they may not be successful. Additionally, most of our distributor agreements can be terminated with limited notice, and we may not be able to replace any terminating distributors in a timely manner or on terms agreeable to us, if at all. If we are unable to maintain our distribution network, if our distribution network is not successful in marketing and selling our products, or if we experience a significant reduction in, cancellation or change in the size and timing of orders from our distributors, our revenues could decline significantly.
 
In August 2006, and as amended, we entered into a distribution agreement with Henry Schein, Inc., or Henry Schein, a large distributor of healthcare products to office-based practitioners, pursuant to which we granted Henry Schein the exclusive right to distribute our complete line of dental laser systems, accessories and services in the United States and Canada. The agreement had an initial term of three years, following which it would automatically renew for an additional period of three years, provided that Henry Schein achieved its minimum purchase requirements.
 
We intend to continue to augment the activities of Henry Schein in the United States and Canada with the efforts of our direct sales force; however, our future revenue will be largely dependent upon the efforts and success of Henry Schein in selling our products. We cannot assure you that Henry Schein will devote sufficient resources to selling our products or, even if sufficient resources are directed to our products, that such efforts will be sufficient to increase net revenue.


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Additionally, on February 27, 2009, we entered into an agreement with HSIC in which HSIC will become our distributor in certain international countries including Germany, Spain, Australia and New Zealand and will be permitted to distribute our products in those additional markets where we do not have current distribution agreements in place.
Components used in our products are complex in design and any defects may not be discovered prior to shipment to customers, which could result in warranty obligations, reducing our revenue and increasing our cost.
 
In manufacturing our products, we depend upon third parties for the supply of various components. Many of these components require a significant degree of technical expertise to design and produce. If we fail to adequately design or if our suppliers fail to produce components to specification, or if the suppliers, or we, use defective materials or workmanship in the manufacturing process, the reliability and performance of our products will be compromised. We have experienced such non-compliance with manufacturing specifications in the past and may continue to experience such in the future, which could lead to higher costs of revenue and thus reduced gross margins.
 
Our products may contain defects that cannot be repaired easily and inexpensively, and we have experienced in the past and may experience in the future some or all of the following:
 
 • loss of customer orders and delay in order fulfillment;
 
 • damage to our brand reputation;
 
 • increased cost of our warranty program due to product repair or replacement;
 
 • inability to attract new customers;
 
 • diversion of resources from our manufacturing and research and development departments into our service department; and
 
 • legal action.
 
The occurrence of any one or more of the foregoing could materially harm our business.


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We must continue to procure materials and components on commercially reasonable terms and on a timely basis to manufacture our products profitably. We have some single-source suppliers.
 
We frequently do not use written supply contracts with our key suppliers; instead, we purchase certain materials and components included in our products from a limited group of suppliers using purchase orders. Our business depends in part on our ability to obtain timely deliveries of materials and components in acceptable quality and quantities from our suppliers. Certain components of our products, particularly specialized components used in our lasers, are currently available only from a single source or limited sources. For example, the crystal, fiber and hand pieces used in our Waterlase systems are each supplied by a separate single suppliersupplier. Our dependence on single-source suppliers involved several risks, including limited control over pricing, availability, quality and from timedelivery schedules. If any one or more of our single-source suppliers cease to timeprovide us with sufficient quantities of our components in a timely manner or on terms acceptable to us, or cease to manufacture components of acceptable quality, we would have experienced quality deficiencies in these materials. In particular,to seek alternative sources of manufacturing. We could incur delays while we locate and engage alternative qualified suppliers and we might be unable to engage alternative suppliers on favorable terms. Any such disruption or increased expenses could harm our gross margins for the year ended December 31, 2005 werebusiness efforts and adversely impacted by higher manufacturing costs as a result of quality issues in parts supplied by third parties.affect our ability to generate sales. Our reliance on these outside manufacturers and suppliers also subjects us to other risks that could harm our business, including:
 
 • we may not be able to obtain adequate supply in a timely manner or on commercially reasonable terms;
 
 • we may have difficulty locating and qualifying alternative suppliers for the various components in our laser systems;
 
 • switching components may require product redesign and submission to the FDA of a 510(k) application, which could significantly delay production;
 
 • our suppliers manufacture products for a range of customers, and fluctuations in demand for the products those suppliers manufacture for others may affect their ability to deliver components for us in a timely manner; and
 
 • our suppliers may encounter financial hardships, be acquired, or experience other business events unrelated to our demand for components, which could inhibit or prevent their ability to fulfill our orders and meet our requirements.


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Any interruption or delay in the supply of components or materials, or our inability to obtain components or materials from alternate sources at acceptable prices in a timely manner, could impair our ability to meet the demand of our customers and cause them to cancel orders or switch to competitive procedures. We are currently in the process of identifying and qualifying alternate source suppliers for our key components. There can be no assurance, however, that we will successfully identify and qualify an alternate source supplier for any of our key components or that we could enter into an agreement with any such alternate source supplier on terms acceptable to us.
 
We may not be able to compete successfully, which will cause our revenue and market share to decline.
 
We compete with a number of domestic and foreign companies that market traditional dental products, such as dental drills, as well as companies that market laser technologies in the dental and medical markets, including Hoya ConBio, a subsidiary of Hoya Photonics, OpusDent Ltd., a subsidiary of Lumenis, KaVo, Deka Dental Corporation, Ivoclar Vivadent AG, and Fotona d.d. If we do not compete successfully, our revenue and market share may decline. Some of our competitors have greater financial, technical, marketing or other resources than we have, which may allow them to respond more quickly to new or emerging technologies and to devote greater resources to the acquisition or development and introduction of enhanced products than we can. The ability of our competitors to devote greater financial resources to product development requires us to work harder to distinguish our products through improving our product performance and pricing, protecting our intellectual property, continuously improving our customer support, accurately timing the introduction of new products and developing sustainable distribution channels worldwide. In addition, we expect the rapid technological changes occurring in the healthcare industry to lead to the entry of new competitors, particularly if dental and medical lasers gain increasing market acceptance. We must be able to anticipate technological


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changes and introduce enhanced products on a timely basis in order to grow and remain competitive. Many of these new competitors would be practitioners focusing on a specific product or market segment, making it more difficult for us to expand our overall market position. If these companies become successful, we expect that competition will become even more intense, leading to greater pricing pressure and making it more difficult for us to expand our sales. New competitors or technological changes in laser products and methods could cause commoditization of our products, require price discounting or otherwise adversely affect our gross margins and our financial condition.
 
Rapidly changing standards and competing technologies could harm demand for our products or result in significant additional costs.
 
The markets in which our products compete are subject to rapid technological change, evolving industry standards, changes in the regulatory environment, and frequent introductions of new devices and evolving dental and surgical techniques. Competing products may emerge which could render our products uncompetitive or obsolete. 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 cannot guarantee that we will successfully identify new product opportunities, identify new and innovative applications of our technology, or be financially or otherwise capable of completing the research and development required to bring new products to market in a timely manner. An inability to expand our product offerings or the application of our technology could limit our growth. In addition, we may incur higher manufacturing costs if manufacturing processes or standards change, and we may need to replace, modify, design or build and install equipment, all of which would require additional capital expenditures.
 
Any problems that we experience with our manufacturing operations may harm our business.
 
In order to grow our business, we must expand our manufacturing capabilities to produce the systems and accessories necessary to meet any demand we may experience. We may encounter difficulties in increasing production of our products, including problems involving production capacity and yields, quality control and assurance, component supply and shortages of qualified personnel. In addition, before we can begin commercial manufacture of our products, we must obtain regulatory approval of our manufacturing facilities, processes and quality systems, and the manufacture of our laser systems must comply with cGMP regulations. The cGMP regulations govern facility compliance, quality control and documentation policies and procedures. In addition, our manufacturing facilities are continuously subject to periodic inspections by the FDA, as well as various state agencies and foreign regulatory agencies. From time to time, we may expend significant resources in obtaining, maintaining and remedying our compliance with these requirements. Our success will


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depend in part upon our ability to manufacture our products in compliance with the FDA’s Quality System regulations and other regulatory requirements. We have experienced quality issues with components of our products supplied by third parties. If we do not succeed in manufacturing our products on a timely basis and with acceptable manufacturing costs while at the same time maintaining good quality control and complying with applicable regulatory requirements, our business could be harmed.
 
Changes in government regulation or the inability to obtain or maintain necessary government approvals could harm our business.
 
Our products are subject to extensive government regulation, both in the United States and in other countries. To clinically test, manufacture and market products for human use, we must comply with regulations and safety standards set by the FDA and comparable state and foreign agencies. Regulations adopted by the FDA are wide ranging and govern, among other things, product design, development, manufacture and testing, labeling, storage, advertising and sales. Generally, products must meet regulatory standards as safe and effective for their intended use before being marketed for human applications. The clearance process is expensive, time-consuming and uncertain. Failure to comply with applicable regulatory requirements of the FDA can result in an enforcement action which may include a variety of sanctions, including fines, injunctions, civil penalties, recall or seizure of our products, operating restrictions, partial suspension or total shutdown of production and criminal prosecution. The failure to receive or maintain requisite approvals for the use of our


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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.
For example, in August 2006, our Irvine, California facility was inspected by the Los Angeles District Office of the FDA, and on September 7, 2006 we received a Warning Letter dated September 5, 2006 from the FDA. The Warning Letter indicated that certain aspects of our quality system were not in conformance with the FDA’s quality system regulations (QSR) for medical devices. The Warning Letter instructed us to take prompt action to address the concerns and stated that failure to do so may result in regulatory action being initiated by the FDA. We prepared a response letter to the FDA which was submitted on September 18, 2006. On September 29, 2006, we received a letter from the FDA stating that it had completed its review of our response to the Warning Letter dated September 5, 2006 and indicating that our response adequately addressed the FDA’s concerns. We are in the process of completing the review and correction of our quality system and are working closely with the Los Angeles district FDA office. We intend to clear the Warning Letter status during our next FDA audit. Until a re-audit is completed by the FDA, however, and we are cleared of all Warning Letter issues, we will continue to operate under a Warning Letter status.
 
To date, we have been successful in obtaining 510(k) clearances from the FDA to market products. However, should we develop new products and applications or make any significant modifications to our existing products or labeling, we will need to obtain additional regulatory clearances or approvals to market such products. Any modification that could significantly affect a product’s safety or effectiveness, or that would constitute a change in its intended use, will require a new 510(k) clearance, or could require a PMA application. The FDA requires each manufacturer to make this determination initially, but the FDA can review any such decision and can disagree with a manufacturer’s determination. If the FDA disagrees with a manufacturer’s determination, the FDA can require the manufacturer to cease marketingand/or recall the modified device until 510(k) clearance or PMA is obtained. If 510(k) clearance is denied and a pre-market approval application is required, we could be required to submit substantially more data, may be required to conduct human clinical testing and would very likely be subject to a significantly longer review period.
 
Products sold in international markets are also subject to the regulatory requirements of each respective country. The regulations of the European Union require that a device have a CE Mark, indicating conformance with European Union laws and regulations before it can be sold in that market. The regulatory international review process varies from country to country. We rely on our distributors and sales representatives in the foreign countries in which we market our products to comply with the regulatory laws of such countries. Failure to comply with the laws of such countries could have a material adverse effect on our operations and, at the very least, could prevent us from continuing to sell products in such countries. In addition, unanticipated


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changes in existing regulatory requirements or the adoption of new requirements could impose significant costs and burdens on us, which could increase our operating expenses and harm our financial condition.
Regulatory proceedings relating to the restatement of our consolidated financial statements could divert management’s attention and resources.
We restated our previously issued financial statements in September of 2003 to reflect a change in the timing of revenue recognition for the fiscal years 2000 through 2002 and the three months ended March 31, 2002 through March 31, 2003. In addition, in July 2005, we restated our consolidated financial statements for the 2002 and 2003 fiscal years, the four quarters of 2003 and the first three fiscal quarters of 2004 due to a number of factors. We received informal requests from the SEC to voluntarily provide information relating to the September 2003 restatement of our consolidated financial statements. We provided information to the SEC and if we receive any additional requests for information, we intend to continue to do so. In accordance with its normal practice, the SEC has not advised us when its inquiry might be concluded. If the SEC elects to request additional information from us or commences further proceedings, including as a result of our restatement, responding to such requests or proceedings could divert management’s attention and resources. Additionally, any negative developments arising from such requests or proceedings could harm our business and cause the price of our common stock to decline.
 
We may have difficulty managing any growth that we might experience.
 
If we experience growth in our operations, our operational and financial systems, procedures and controls may need to be expanded, which will place significant demands on our management, distract management from our business plan and increase expenses. Our success will depend substantially on the ability of our management team to manage any growth effectively. These challenges may include, among others:
 
 • maintaining our cost structure at an appropriate level based on the revenue we generate;
 
 • managing manufacturing expansion projects;
 
 • implementing and improving our operational and financial systems, procedures and controls; and
 
 • managing operations and international distributors in multiple locations and multiple time zones.
 
In addition, we incur significant legal, accounting, insurance and other expenses as a result of being a public company. The Sarbanes-Oxley Act of 2002, as well as rules subsequently implemented by the SEC and NASDAQ, has required changes in corporate governance practices of public companies. We expect these rules and regulations will continue to result in substantial legal and financial compliance costs and some activities will continue to be more time-consuming and costly. We also expect these rules and regulations may make it more difficult and more expensive for us to maintain director and officer insurance and, from time to time, we may be required to accept reduced policy limits and coverage or incur significantly higher costs to maintain the same or similar coverage. As a result, it may be more difficult for us to attract and retain qualified persons to serve on our Board of Directors or as executive officers. We continue to evaluate and monitor developments with respect to these rules, and we cannot predict or estimate the amount of additional costs we may incur or the timing of such costs.
 
If we fail to secure or protect our intellectual property rights, competitors may be able to use our technologies, which could weaken our competitive position, reduce our revenue or increase our costs.
 
Our future success will depend, in part, on our ability to obtain and maintain patent protection for our products and technology, to preserve our trade secrets and to operate without infringing the intellectual


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property of others. We rely on patents to establish and maintain proprietary rights in our technology and products. We currently possess a number of issued patents and patent applications with respect to our products and technology; however, we cannot assure that any additional patents will be issued, that the scope of any patent protection will be effective in helping us address our competition or that any of our patents will be held valid if subsequently challenged. It is also possible that our competitors may independently develop similar products, duplicate our products or design products that circumvent our patents. Additionally, the laws of


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foreign countries may not protect our products or intellectual property rights to the same extent as the laws of the United States. In addition, there are numerous proposed changes to the patent laws and rules of the U.S. Patent and Trademark Office which, if enacted, may have a significant impact on our ability to protect our technology and enforce our intellectual property rights. For example, Congress is considering several significant changes to the U.S. patent laws, including (among other things) changing from a “first to invent” to a “first inventory to file” system, limiting the time for which a patentee may file a patent suit, requiring the apportionment of patent damages, and creating a post-grant opposition process to challenge patents after they have issued. If we fail to protect our intellectual property rights adequately, our competitive position and financial condition may be harmed.
 
We may be sued by third parties for alleged infringement of their proprietary rights.
 
We face substantial uncertainty regarding the impact that other parties’ intellectual property positions will have on the markets for dental and other medical lasers. The medical technology industry has in the past been characterized by a substantial amount of litigation and related administrative proceedings regarding patents and intellectual property rights. From time to time, we have received, and expect to continue to receive, notices of claims of infringement, misappropriation or misuse of other parties’ proprietary rights. Some of these claims may lead to litigation. 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, may be time-consuming and distracting to management, result in costly litigation or cause product shipment delays. Adverse determinations in litigation could subject us to significant liability and could result in the loss of proprietary rights. A successful lawsuit against us could also force us to cease selling or redesign products that incorporate the infringed intellectual property. Additionally, we could be required to seek a license from the holder of the intellectual property to use the infringed technology, and it is possible that we may not be able to obtain a license on acceptable terms, or at all. Any of the foregoing adverse events could seriously harm our business.
 
In January 2005, we acquiredWe are subject to a variety of litigation in the intellectual property portfoliocourse of Diodem, LLC, or Diodem, consistingour business that could adversely affect our results of certain U.S.operations and international patentsfinancial condition.
We are subject to a variety of which four were asserted against us, and settled the existing litigation between us and Diodem,incidental to our business, including claims for consideration of $3.0 million in cash, 361,664 shares of common stock (valued at the common stock fair market value on the closing datedamages arising out of the transaction for a total of approximately $3.5 million) and a five-year warrant exercisable into 81,037 shares of common stock at an exercise price of $11.06 per share. In addition, 45,208 additional shares of common stock were placed in escrow, to be released to Diodem, if certain criteria specified in the purchase agreement were satisfied in or before July 2006. As of March 31, 2006, we determined that it was probable that these shares of common stock would be released from escrow in or before July 2006. Accordingly, we recorded a patent infringement legal settlement charge of approximately $348,000 in 2006. In July 2006, we released these shares from escrow. The common stock issued, the escrow shares of common stock and the warrant shares had certain registration rights, and a Registration Statement onForm S-3 was filed with the Securities and Exchange Commission to register for sale any of these shares which remained unsold. This Registration Statement became effective on April 17, 2007. The total consideration had an estimated value of approximately $7.4 million including the value of the patents acquired in January 2005. As of December 31, 2004, we accrued approximately $6.4 million for the settlement of the existing litigation with $3.0 million included in current liabilities and $3.4 million recorded as a long-term liability. In January 2005, we recorded an intangible asset of $0.5 million representing the estimated fair value of the intellectual property acquired. The estimated fair value of the patents was determined with the assistance of an independent evaluation expert using a relief from royalty and a discounted cash flow methodology. As a result of the acquisition, Diodem immediately withdrew its patent infringement claims against us and the case was formally dismissed on May 31, 2005. We did not pay and have no obligation to pay any royalties to Diodem on past or future salesuse of our products butor services and claims relating to intellectual property matters, employment matters, commercial disputes, competition and sales and trading practices, environmental matters, personal injury and insurance coverage. Some of these lawsuits include claims for punitive as well a compensatory damages. The defense of these lawsuits may divert our management’s attention, we agreedmay incur significant expenses in defending these lawsuits, and we may be required to pay additional consideration if any of the acquired patents held by us are licensed to a third party by a certain date. In order to secure performance by us of these financial obligations, the parties entered into an intellectual property security agreement, pursuant to which,damage awards or settlement or become subject to theequitable remedies that could adversely affect our financial condition, operations and results of operations. Moreover, any insurance or indemnification rights of existing creditors and the rights of any future creditors to the extent provided in the agreement, we granted Diodem a security interest in all of their rights, title and interest in the royalty patents. In September 2007, Diodem filed a motion with the United States District Court in the Central District of California requesting that the original case be reopened for limited discovery concerning Diodem’s claims that we breached variousmay have may be insufficient or unavailable to protect us against potential loss exposures. In addition, developments in legal proceedings in any given period may require us to record loss contingency estimates in our financial statements, which could adversely affect our results of our obligations and representationsoperations in the settlement agreement and seeking damages in the range of $3.85 million to $5.2 million plus costs and attorneys fees incurred in recovering said alleged damages. The District Court denied Diodem’s motion finding, in part, that if Diodem wishes to pursue claims for breach of the settlement agreement, it must file a new lawsuit for breach of contract. On February 20, 2008, Diodem filed a lawsuit for


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breach of the settlement agreement in Los Angeles Superior Court, naming us and a wholly-owned subsidiary, BL Acquisition II, Inc. as defendants. Diodem seeks damages of no less than $4.0 million. We intend to vigorously defend Diodem’s claims.any period.
 
We have significant international sales and are subject to risks associated with operating in international markets.
 
International sales comprise a significant portion of our net revenue and we intend to continue to pursue and expand our international business activities. For the fiscal year 2007,2008, international sales accounted for approximately 38%25% of our net revenue, as compared to approximately 38% of our net revenue in fiscal year


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2007 and approximately 37% of our net revenue in fiscal year 2006 and approximately 30% of our net revenue in fiscal 2005.2006. Political and economic conditions outside the United States could make it difficult for us to increase our international revenue or to operate abroad. International operations, including our operations in Germany, Spain, Australia and New Zealand, are subject to many inherent risks, including among others:
 
 • adverse changes in tariffs and trade restrictions;
 
 • political, social and economic instability and increased security concerns;
 
 • fluctuations in foreign currency exchange rates;
 
 • longer collection periods and difficulties in collecting receivables from foreign entities;
 
 • exposure to different legal standards;
 
 • transportation delays and difficulties of managing international distribution channels;
 
 • reduced protection for our intellectual property in some countries;
 
 • difficulties in obtaining domestic and foreign export, import and other governmental approvals, permits and licenses and compliance with foreign laws;
 
 • the imposition of governmental controls;
 
 • unexpected changes in regulatory or certification requirements;
 
 • difficulties in staffing and managing foreign operations; and
 
 • potentially adverse tax consequences and the complexities of foreign value-added tax systems.
 
We believe that international sales will continue to represent a significant portion of our net revenue, and we intend to expand our international operations further. Our direct net revenue in Australia, Germany, New Zealand and Spain is denominated principally in local currency, while our net revenue in other international markets is primarily in U.S. dollars. As a result, an increase in the relative value of the dollar against these currencies would lead to less income from those sales, unless we increase prices, which may not be possible due to competitive conditions. We could experience losses from foreign transactions if the relative value of the dollar were to increase in the future. Additionally, in international markets where our sales are denominated in U.S. dollars, an increase in the relative value of the dollar against the currency in such markets could indirectly increase the price of our products in those markets and result in a decrease in sales. Furthermore, increases or decreases in the U.S. dollar or foreign currencies could result in significant period to period fluctuations of our operating results. For example, in 2007, we recognized a gain of $1.4 million on foreign currency transactions due to fluctuations in currency rates. In mid-October 2008, we significantly reduced the inter-company payable due from the foreign subsidiaries to us by making an approximately equal capital contribution which did not result in a significant change in global cash positions. However, subsequent to the contribution date, foreign currency transactions gains and losses recorded on the remaining inter-company balances are expected to be significantly reduced. Additionally, we are in the process of transitioning from direct sales through our foreign subsidiaries to sales through distributors. Therefore, the amount of inter-company transactions and related balances will likely be reduced. We do not currently engage in any transactions as a hedge against risks of loss due to foreign currency fluctuations, although we may consider doing so in the future.
 
Expenses relating to our foreign operations are paid in local currencies;currencies, therefore, an increase in the value of the local currencies relative to the dollar would increase the expenses associated with those operations and reduce our earnings. In addition, we may experience difficulties associated with managing our operations remotely and complying with local regulatory and legal requirements for maintaining our operations in that


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country. Any of these factors may adversely affect our future international revenue and, consequently, negatively impact our business and operating results.


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Our products are subject to recall even after receiving FDA clearance or approval, which would harm our reputation, business and financial results.
 
The FDA and similar governmental bodies in other countries have the authority to require the recall of our products in the event of material deficiencies or defects in design or manufacture. A government mandated or voluntary recall by us could occur as a result of component failures, manufacturing errors or design defects, including defects in labeling. Any recall would divert management’s attention and financial resources and harm our reputation with customers. Any recall involving our Waterlaselaser systems could harm the reputation of the product and our company and would be particularly harmful to our business and financial results, in part because the Waterlaselaser systems compose such an important part of our portfolio of products.
 
We may not successfully address problems encountered in connection with any future acquisition.
 
We expect to continue to consider opportunities to acquire or make investments in other technologies, products and businesses that could enhance our capabilities, complement our current products or expand the breadth of our markets or customer base. We have limited experience in acquiring other businesses and technologies. Potential and completed acquisitions and strategic investments involve numerous risks, including, among others:
 
 • problems assimilating the purchased technologies, products or business operations;
 
 • problems maintaining uniform standards, procedures, controls and policies;
 
 • unanticipated costs associated with the acquisition;
 
 • diversion of management’s attention from our core business;
 
 • adverse effects on existing business relationships with suppliers and customers;
 
 • risks associated with entering new markets in which we have no or limited prior experience;
 
 • potential loss of key employees of acquired businesses; and
 
 • increased legal and accounting costs as a result of the rules and regulations related to the Sarbanes-Oxley Act of 2002.
 
If we fail to properly evaluate and execute acquisitions and strategic investments, our management team may be distracted from our day-to-day operations, our business may be disrupted and our operating results may suffer. In addition, if we finance acquisitions by issuing equity or convertible debt securities, our stockholders would be diluted.
 
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 have various billing practices and patient mixes. Such practices range from primarily private pay to those who rely heavily on third party payors, such as private insurance or government programs. In the United States, third party payors review and frequently challenge the prices charged for medical services. In many foreign countries, the prices for dental services are predetermined through government regulation. Payors may deny coverage and reimbursement if they determine that the procedure was not medically necessary, such as a cosmetic procedure, or that the device used in the procedure was investigational. We believe that most of the procedures being performed with our current products generally are reimbursable, with the exception of cosmetic applications, such as tooth whitening. For the portion of dentists who rely heavily on third party reimbursement, the inability to obtain reimbursement for services using our products could deter them 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


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to generate a return on investment using our current or future products. Such changes could act as disincentives for capital investments by dental and medical professionals and could have a negative impact on our business and results of operations.


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Material increases in interest rates or negative changes inThe recent financial crisis and general slowdown of the economy may adversely affect the credit availability may harmand liquidity of our sales.dental customers and suppliers.
 
The credit availability and liquidity of our customers and suppliers may be materially affected by the current financial crisis. If our suppliers experience credit or liquidity problems, important sources of raw materials or manufactured goods may be affected. We currently sell our products primarily to dentists in general practice. These dentists often purchase our products with funds they secure through various financing arrangements with third party financial institutions, including credit facilities and short-term loans. If interest rates increase or the availability of credit is otherwise negatively impacted by market conditions, these financing arrangements will be more expensive to our dental customers, which would effectively increase the overall cost of owning our products for our customers and, thereby, may decrease demand for our products. Any reduction in the sales of our products would cause our business to suffer.
 
Product liability claims against us could be costly and could harm our reputation.
 
The sale of dental and medical devices involves the inherent risk of product liability claims against us. We currently maintain product liability insurance on a per occurrence basis with a limit of $11.0 million per occurrence and $12.0 million in the aggregate for all occurrences. The insurance is subject to various standard coverage exclusions, including damage to the product itself, losses from recall of our product and losses covered by other forms of insurance such as workers compensation. We cannot be certain that we will be able to successfully defend any claims against us, nor can we be certain that our insurance will cover all liabilities resulting from such claims. In addition, there is no assurance that we will be able to obtain such insurance in the future on terms acceptable to us, or at all. Regardless of merit or eventual outcome, any product liability claim brought against us could result in harm to our reputation, decreased demand for our products, costs related to litigation, product recalls, loss of revenue, an increase in our product liability insurance rates or the inability to secure coverage in the future, and may cause our business to suffer.
 
Our operations are consolidated primarily in one facility. A disaster at this facility is possible and could result in a prolonged interruption of our business.
 
Substantially all of our administrative operations and our manufacturing operations are located at our facility in Irvine, California, which is near known earthquake fault zones. We have taken precautions to safeguard our facilities including disaster recovery planning and off-site backup of computer data; however, a natural disaster such as an earthquake, fire or flood, could seriously harm our business, adversely affect our operations and damage our reputation with customers. We maintain commercial insurance that includes business interruption coverage; however it may not be adequate to cover our losses and may provide only limited coverage for a natural disaster.
 
Our ability to use net operating loss carryforwards may be limited.
 
Section 382 of the Internal Revenue Code of 1986 generally imposes an annual limitation on the amount of net operating loss carryforwards that may be used to offset taxable income when a corporation has undergone significant changes in its stock ownership. In 2006, we completed an analysis to determine the applicability of the annual limitations imposed by Section 382 caused by previous changes in our stock ownership and determined that such limitations should not be significant. Based on our analysis, we believe that, as of December 31, 2007,2008, approximately $55.8$59.5 million of net operating loss carryforwards were available to us for federal income tax purposes, allpurposes. A detailed analysis will be required at the time we begin utilization of whichany net operating losses to determine if there is available to offset federal taxable income or the taxable income generated in 2008 or in future years, if any. However,a Section 382 limitation. In addition, any ownership changes qualifying under Section 382 including changes resulting from or affected by our public offering or our stock repurchase plan may adversely affect our ability to use our remaining net operating loss carryforwards. If we lose our ability to use net operating loss carryforwards, any income we generate will be subject to tax earlier than it would be if we were able to use net operating loss carryforwards, resulting in lower profits.


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Changes in our assumptions with respect to uncertain tax positions may have an adverse effect on our consolidated results of operations.
We adopted Financial Accounting Standards Board (“FASB”) Interpretation No. 48,Accounting for Uncertainty in Income Taxes — an Interpretation of FASB Statement No. 109(“FIN 48”) as of January 1, 2007, as required. As a result of the implementation of FIN 48, we recognized a $156,000 liability for unrecognized tax benefits including interest and penalties, which was accounted for as an increase in the January 1, 2007 accumulated deficit balance. As of December 31, 2007, our liability for unrecognized tax benefits, including interest and penalties, was $195,000. In future periods, the income tax assets and liabilities we recognize for uncertain tax positions, if any, will be adjusted when the related income tax liabilities are paid, the income tax positions are settled with the taxing authorities, the related statutes of limitations expire or under other circumstances as provided for in FIN 48. Our assessment of uncertain tax positions requires that we make estimates and judgments about the application of tax law, the expected resolution of uncertain tax positions and other matters. In the event that uncertain tax positions are resolved for amounts different than our estimates, or the related statutes of limitations expire without our being assessed additional income taxes, we will be required to adjust the amounts of the related assets and liabilities in the period in which such events occur. Such adjustments may have a material impact on our income tax provision and our consolidated results of operations. Moreover, if the FASB, SEC or others further amend or interpret the accounting standards relating to income taxes and uncertain tax positions, or challenge the estimates and judgments we make in applying such accounting standards, we could be required to adjust the amounts of our income tax assets and liabilities or to restate our consolidated financial statements. Any such adjustments or restatement could have a material adverse effect on our consolidated income tax provision, our consolidated results of operations and the price of our common stock.
In certain circumstances we may be required to return a portion of the $3.0 million license payment we received from Procter & Gamble in connection with our entering into a definitive agreement relating to our intellectual property.
On June 28, 2006, we entered into a binding letter agreement with The Procter & Gamble Company, or P&G, evidencing the formation of a strategic relationship between our two companies. The binding letter agreement set forth the terms and conditions under which the parties would negotiate a definitive agreement formalizing P&G’s acquisition of certain exclusive rights from us in exchange for certain cash payments by P&G. The letter also set forth theagreed-upon key terms and conditions that will be incorporated into the definitive agreement. Upon execution of the binding letter agreement, P&G paid us $3.0 million for the rights and licenses to be memorialized in the definitive agreement. We recorded this amount in deferred revenue. On January 24, 2007, the parties executed the definitive license agreement. If an uncured material breach of the agreement occurred prior to June 28, 2008, we may be required to return a portion of the $3.0 million payment to P&G.
Our business is capital intensive and the failure to obtain capital could require that we curtail capital expenditures.
 
To remain competitive, we must continue to make significant investments in the development of our products, the expansion of our sales and marketing activities and the expansion of our operating and management infrastructure as we increase sales domestically and internationally. We expect that substantial capital will be required to expand our operations and fund working capital for anticipated growth. We may need to raise additional funds through further debt or equity financings, which may affect the percentage ownership of existing holders of common stock and which may have rights, preferences or privileges senior to those of the holders of our common stock or may be issued at a discount to the market price of our common stock thereby resulting in dilution to our existing stockholders. If we raise additional funds by raising debt, we may be subject to debt covenants which could place limitations on our operations. We may not be able to raise additional capital on reasonable terms, or at all, or we may use capital more rapidly than anticipated. If we cannot raise the required capital when needed, we may not be able to satisfy the demands of existing and prospective customers and may lose revenue and market share.


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The following factors among others could affect our ability to obtain additional financing on favorable terms, or at all:
 
 • our results of operations;
 
 • general economic conditions and conditions in the electronics industry;
 
 • the perception of our business in the capital markets;
 
 • our ratio of debt to equity;
 
 • our financial condition;
 
 • our business prospects; and
 
 • interest rates.
 
If we are unable to obtain sufficient capital in the future, we may have to curtail our capital expenditures. Any curtailment of our capital expenditures could result in a reduction in net revenue, reduced quality of our products, increased manufacturing costs for our products, harm to our reputation, reduced manufacturing efficiencies or other harm to our business.
 
Our charter documents and Delaware law may inhibit a takeover that our stockholders consider favorable and could also limit the price of our stock.
 
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 the existence of our stockholder rights plan, could make it difficult for any party to acquire us, even though an acquisition might be beneficial to our stockholders, and could limit the price that investors might be willing to pay in the future for shares of our common stock.
 
In December 1998, we adopted a stockholder rights plan, which was extended in December 2008, pursuant to which one preferred stock purchase right was distributed to our stockholders for each share of our common stock held. In connection with the stockholder rights plan, the Board of Directors has designated 500,000 shares of Series B Junior Participating Cumulative Preferred Stock. If any party acquires 15% or more of our outstanding common stock while the stockholder rights plan remains in place (i.e., if such party does not negotiate with the Board of Directors, which has the power to redeem the rights and terminate the plan), the holders of these rights (other than the party acquiring the 15% position) will be able to purchase shares of our common stock (or other securities or assets) at a discounted price, causing substantial dilution to the party acquiring the 15% position. Following the acquisition of 15% or more of our stock by any person (without a redemption of the rights or a termination of the stockholder rights plan by the Board of Directors), if we are acquired by or merged with any other entity, holders of these rights (other than the party acquiring the 15%


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position) will also be able to purchase shares of common stock of the acquiring or surviving entity if the stockholder rights plan continues to remain in place.
 
In addition, under our certificate of incorporation, the Board of Directors has the power to authorize the issuance of up to 500,000 shares of preferred stock that is currently undesignated, and to designate the price, rights, preferences, privileges and restrictions, including voting rights, of those shares without further vote or action by the stockholders. Accordingly, our Board of Directors may issue preferred stock with terms that could have preference over and adversely affect the rights of holders of our common stock. The issuance of any such preferred stock may:
 
 • delay, defer or prevent a change in control of our company;
 
 • adversely affect the voting and other rights of the holders of our common stock; or
 
 • discourage acquisition proposals or tender offers for our shares without the advance approval of the Board of Directors, including bids at a premium over the market price for our common stock


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We are also subject to the provisions of Section 203 of the Delaware General Corporation Law, which may prohibit certain business combinations with stockholders owning 15% or more of our outstanding voting stock or any of our associates or affiliates who at any time in the past three years have owned 15% or more of our outstanding voting stock. These provisions and the others discussed above may have the effect of entrenching our management team and deprive stockholders of the opportunity to sell their shares to potential acquirers at a premium over market prices. The potential inability to obtain a control premium could reduce the price of our common stock.
 
Our common stock could be diluted by the conversion of outstanding convertible securities.
 
We have issued and will continue to issue convertible securities in the form of options and warrants as incentive compensation for services performed by our employees, directors, consultants and others. As of December 31, 2007,2008, we had options and warrants to purchase 4,411,0004,581,000 shares of our common stock outstanding, of which options and warrants to purchase 3,173,0002,786,000 shares of common stock were exercisable. If these options or warrants were exercised, it would dilute the ownership of our stock and could adversely affect our common stock’s market price.
 
We may not be able to maintain effective internal controls.
 
Management is responsible for establishing and maintaining adequate internal control over financial reporting. Our internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with generally accepted accounting principles. In making its assessment of internal control over financial reporting as of December 31, 2007,2008, management used the criteria described inInternal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission(“COSO”). A material weakness is a control deficiency, or combination of control deficiencies, that results in a more than remote likelihood that a material misstatement of the annual or interim financial statements will not be prevented or detected.
 
Management determined that no material weaknesses in our internal control over financial reporting existed as of December 31, 2008, and concluded that our internal control over financial reporting was effective as of December 31, 2008 based on the criteria of theInternal Control — Integrated Frameworkissued by COSO. Management determined that one material weakness in our internal control over financial reporting existed as of December 31, 2007, and therefore concluded that our internal control over financial reporting was not effective as of December 31, 2007 based on the criteria of theInternal Control — Integrated Frameworkissued by COSO.2007. This material weakness was remediated in the first quarter of 2008.
 
While management will continue to review the effectiveness of our disclosure controls and procedures and internal control over financial reporting and take appropriate remediation efforts to address any identified control weaknesses or deficiencies, we can notcannot assure you that our disclosure controls and procedures or


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internal control over financial reporting will be effective in accomplishing all control objectives all of the time. Other deficiencies, particularly a material weakness in internal control over financial reporting which may occur in the future could result in misstatements of our results of operations, restatements of our financial statements, a decline in our stock price, or otherwise materially adversely affect our business, reputation, results of operations, financial condition or liquidity.
 
If future data proves to be inconsistent with our clinical results, our revenues may decline.
 
If new studies or comparative studies generate results that are not as favorable as our clinical results, our revenues may decline. Furthermore, physicians may choose not to purchase our Waterlase systemlaser systems until they receive additional published long-term clinical evidence and recommendations from prominent physicians that indicate our Waterlase system islaser systems are effective for dental applications.
 
If we are unable to attract and retain personnel necessary to operate our business, our ability to develop and market our products successfully could be harmed.
 
Our success is dependent upon our senior management team, as well as our ability to attract and retain qualified personnel. On November 6, 2007, we issued a press release announcing that, effective November 5, 2007, we had terminated Jeffrey W. Jones from his positions as Chief Executive Officer and President of


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Biolase and terminated Keith G. Bateman from his position as Executive Vice President, Global Sales and Marketing. The Board of Directors appointed Federico Pignatelli as Interim Chief Executive Officer and President. On January 2, 2008, we appointed Jake St. Philip as our CEO. Mr. Pignatelli will continue to fulfill the role of President in 2008. Additionally, on January 2, 2008, Richard L. Harrison resigned as Executive Vice President and Chief Financial Officer. We can provide no assurance that we will be able to retain our existing senior management team or that we will be able to attract qualified replacement personnel. These changesChanges in our senior management and on the Board may be disruptive to our business, and, during this currenta transition period, there may be uncertainty among investors, vendors, customers, rating agencies, employees and others concerning our future direction and performance. In the first quarter of 2009, we issued a press release announcing that, effective March 5, 2009; Jake P. St. Philip resigned from his position as Chief Executive Officer, and the Board of Directors appointed our Chief Financial Officer, David M. Mulder, to the position of Chief Executive Officer. If we are unable to effectively manage and maintain our business through thethis transition in management, including the timely hiring of a new Chief Financial Officer, our results of operations and financial condition may be adversely affected.
 
Our future success also depends on our ability to attract and retain additional qualified management, engineering, sales and marketing and other highly skilled technical personnel.
 
Any failure in our efforts to train dental practitioners could reduce the market acceptance of our Waterlase systemDentistry and reduce our revenues.
 
There is a learning process involved for dental practitioners to become proficient in the use of our Waterlaselaser systems. It is critical to the success of our sales efforts to adequately train a sufficient number of dental practitioners and to provide them with adequate instruction in the use of our Waterlaselaser systems. Following completion of training, we rely on the trained dental practitioners to advocate the benefits of our products in the broader marketplace. Convincing dental practitioners to dedicate the time and energy necessary for adequate training is challenging, and we cannot assure you that we will be successful in these efforts. If dental practitioners are not properly trained, they may misuse or ineffectively use our products, or fail to recognize the benefits provided by our Waterlaselaser systems. This may also result in unsatisfactory patient outcomes, patient injury, negative publicity or lawsuits against us, any of which could negatively affect our reputation and sales of our Waterlaselaser systems.
 
We spend considerable time and money complying with federal, state and foreign regulations and, if we are unable to fully comply with such regulations, we could face substantial penalties.
 
We are directly or indirectly, through our customers, subject to extensive regulation by both the federal government and the states and foreign countries in which we conduct our business. The laws that directly or indirectly affect our ability to operate our business include, but are not limited to, the following:
 
 • The Federal Food, Drug, and Cosmetic Act, which regulates the design, testing, manufacture, labeling, marketing, distribution and sale of prescription drugs and medical devices;
 
 • state food and drug laws;


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 • the federal Anti-Kickback Law, which prohibits persons from knowingly and willfully soliciting, offering, receiving or providing remuneration, directly or indirectly, in cash or in kind, to induce either;
 
 • the referral of an individual, or furnishing or arranging for a good or service, for which payment may be made under federal healthcare programs such as the Medicare and Medicaid Programs;
 
 • Medicare laws and regulations that prescribe the requirements for coverage and payment, including the amount of such payment, and laws prohibiting false claims for reimbursement under Medicare and Medicaid;
 
 • the federal physician self-referral prohibition, commonly known as the Stark Law, which, in the absence of a statutory or regulatory exception, prohibits the referral of Medicare patients by a physician to an entity for the provision of designated healthcare services, if the physician or a member of the physician’s immediate family has a direct or indirect financial relationship, including an ownership interest in, or a compensation arrangement with, the entity and also prohibits that entity from submitting a bill to a federal payor for services rendered pursuant to a prohibited referral;


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 • state laws that prohibit the practice of medicine by non-physicians and fee-splitting arrangements between physicians and non-physicians, as well as state law equivalents to the Anti-Kickback Law and the Stark Law, which may not be limited to government reimbursed items; and
 
 • the Federal Trade Commission Act and similar laws regulating advertising and consumer protection.
 
If our past or present operations are found to be in violation of any of the laws described above or the other governmental regulations to which we or our customers are subject, we may be subject to the applicable penalty associated with the violation, including civil and criminal penalties, damages, fines, exclusion from the Medicare and Medicaid programs and the curtailment or restructuring of our operations. If we are required to obtain permits or licensure under these laws that we do not already possess, we may become subject to substantial additional regulation or incur significant expense. Any penalties, damages, fines, curtailment or restructuring of our operations would adversely affect our ability to operate our business and our financial results. The risk of our being found in violation of these laws is increased by the fact that many of them have not been fully interpreted by applicable regulatory authorities or the courts, and their provisions are open to a variety of interpretations and additional legal or regulatory change. Any action against us for violation of these laws, even if we successfully defend against it, could cause us to incur significant legal expenses, divert our management’s attention from the operation of our business and damage our reputation.
 
Product sales or introductions may be delayed or canceled as a result of the FDA regulatory process, which could cause our sales or profitability to decline.
 
The process of obtaining and maintaining regulatory approvals and clearances to market a medical device from the FDA and similar regulatory authorities abroad can be costly and time consuming, and we cannot assure you that such approvals and clearances will be granted. Pursuant to FDA regulations, unless exempt, the FDA permits commercial distribution of a new medical device only after the device has received 510(k) clearance or is the subject of an approved pre- marketpre-market approval application. The FDA will clear marketing of a medical device through the 510(k) process if it is demonstrated that the new product is substantially equivalent to other 510(k)-cleared products. The pre-market approval application process is more costly, lengthy and uncertain than the 510(k) process, and must be supported by extensive data, including data from preclinical studies and human clinical trials. Because we cannot assure you that any new products, or any product enhancements, that we develop will be subject to the shorter 510(k) clearance process, significant delays in the introduction of any new products or product enhancement may occur. We cannot assure you that the FDA will not require a new product or product enhancement to go through the lengthy and expensive pre-market approval application process. Delays in obtaining regulatory clearances and approvals may:
 
 • delay or eliminate commercialization of products we develop;
 
 • require us to perform costly procedures;
 
 • diminish any competitive advantages that we may attain; and
 
 • reduce our ability to collect revenues or royalties.


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Although we have obtained 510(k) clearance from the FDA to market our Waterlase and Diodedental laser systems, we cannot assure you that the clearance of these systems will not be withdrawn or that we will not be required to obtain new clearances or approvals for modifications or improvements to our products.
 
Item 1B.  Unresolved Staff Comments
 
None.
 
Item 2.  Properties
 
In January 2006, we entered into a five-year lease for our 57,000 square foot corporate headquarters and manufacturing facility located at 4 Cromwell, Irvine, California. We believe that our current facility will be sufficient for our current needs and that suitable additional or substitute space will be available as needed to accommodate foreseeable expansion of our operations.
Our wholly-owned subsidiary, BIOLASE Europe, owns a facility totaling approximately 20,000 square feet of space in Floss, Germany. In addition, we lease facilities in Australia and New Zealand. We believe thatDuring the first quarter of 2009, we began the process of transitioning our current facilities are sufficient for our


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current needsinternational direct sales operations to a distributor model. As part of this transition, we expect to sell the Floss land and that suitable additional or substitute space will be available as needed to accommodate foreseeable expansion of our operations.building and exit the facility leases in Australia and New Zealand. Other than the land and building in Germany, with a recorded net book amount of approximately $1.1 million,$679,000, the majority of our long-lived assets are located in the United States.
 
Item 3.  Legal Proceedings
In August 2004, we and certain of our officers were named as defendants in several putative shareholder class action lawsuits filed in the United States District Court for the Central District of California. The complaints purported to seek unspecified damages on behalf of an alleged class of persons who purchased our common stock between October 29, 2003 and July 16, 2004. The complaints allege that we and our officers violated federal securities laws by failing to disclose material information about the demand for our products and the fact that we would not achieve the alleged forecasted growth. The claimed misrepresentations include certain statements in our press releases and the registration statement we filed in connection with our public offering of common stock in March 2004. In January 2006, defendants’ motion to dismiss the second amended consolidated class action complaint was granted and the action was dismissed, with leave to further amend, by the order of the Honorable David O. Carter, United States District Judge for the Central District of California. On March 10, 2006, the plaintiffs filed a third amended complaint. The third amended complaint makes the same allegations regarding violations of the federal securities laws but is limited to an alleged class of investors who purchased or otherwise acquired our common stock pursuant to or traceable to the public offering of our common stock that closed in March 2004. Defendants filed a motion to dismiss that complaint and on July 25, 2006, the Court ruled on the motion, granting the motion on the grounds that lead plaintiffs lack standing, denying the motion on the grounds that the complaint fails to state a claim and allowing plaintiffs to file a fourth amended complaint and a motion to appoint new lead plaintiffs. On August 23, 2006, plaintiffs filed a fourth amended complaint which defendants answered on October 20, 2006. In addition, in August 2004, three stockholders filed derivative lawsuits in the Superior Court in Orange County, California seeking recovery on our behalf and alleging, among other things, breach of fiduciary duty by two officers and by the members of our Board of Directors, who were named as defendants. The cases were consolidated and the plaintiffs in the consolidated derivative action raised claims on our behalf that include alleged misrepresentations in 2003 and 2004 as to the demand for our products, our financial results and future prospects. In both the class action and the derivative suit the parties have entered into settlement agreements, the respective courts have approved the settlements and the lawsuits have been concluded.
On April 20, 2007, the parties entered into a Stipulation of Settlement (the “Derivative Stipulation”) in which they agreed to settle the derivative litigation. Under the Derivative Stipulation, in exchange for a release of all claims against the defendant officers and directors that were or could have been alleged in the complaints in the derivative cases and dismissal of the derivative suit, our directors and officers liability insurance carrier agreed to pay on behalf of the individual defendants $500,000 to or as directed by us (including a $100,000 attorney’s fee to plaintiff) and we have agreed to adopt or maintain certain corporate governance measures described in the Derivative Stipulation. The Derivative Stipulation and a motion for approval of the settlement were filed in the Orange County Superior Court on April 24, 2007. On July 13, 2007, the Court held a hearing on the motion for final approval of the settlement of the derivative action and also for an award of attorneys’ fees and reimbursement of expenses. On July 20, 2007, the Court entered a Final Judgment and Order of Dismissal with Prejudice approving the settlement and the Derivative Stipulation, dismissing the litigation and releasing as to Biolase and all Biolase stockholders all settled derivative claims and barring all stockholders from pursuing the settled derivative claims.
On April 23, 2007, the Court in the federal class action entered an Order preliminarily approving the settlement of the class action, as contained in a Stipulation of Settlement (the “Class Stipulation”) filed with the Court. On August 15, 2007, the Court entered an Order and Final Judgment approving the settlement. Under the Class Stipulation, in exchange for a release of all claims and dismissal of the litigation, our directors and officers liability insurance carrier paid $1,950,000 in cash to fund payments to the class members, net of fees and costs to plaintiffs’ counsel. Such amount included the amount the carrier paid to settle the derivative


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action as discussed in the preceding paragraph. As a result, we incurred no cost in the settlements. In the settlement agreements, the defendants admitted no wrongdoing.
 
In January 2005, we acquired the intellectual property portfolio of Diodem, LLC, or Diodem, consisting of certain U.S. and international patents of which four were asserted against us, and settled the existing litigation between us and Diodem, for consideration of $3.0 million in cash, 361,664 shares of common stock (valued at the common stock fair market value on the closing date of the transaction for a total of approximately $3.5 million) and a five-year warrant exercisable into 81,037 shares of common stock at an exercise price of $11.06 per share. In addition, 45,208 additional shares of common stock were placed in escrow, to be released to Diodem, if certain criteria specified in the purchase agreement were satisfied in or before July 2006. As of March 31, 2006, we determined that it was probable that these shares of common stock would be released from escrow in or before July 2006. Accordingly, we recorded a patent infringement legal settlement charge of approximately $348,000 in 2006. In July 2006, we released these shares from escrow. The common stock issued, the escrow shares of common stock and the warrant shares had certain registration rights, and a Registration Statement onForm S-3 was filed with the Securities and Exchange Commission, or SEC, to register for sale any of these shares which remained unsold. This Registration Statement became effective on April 17, 2007. The total consideration had an estimated value of approximately $7.4 million including the value of the patents acquired in January 2005. As of December 31, 2004, we accrued approximately $6.4 million for the settlement of the existing litigation with $3.0 million included in current liabilities and $3.4 million recorded as a long-term liability. In January 2005, we recorded an intangible asset of $0.5 million representing the estimated fair value of the intellectual property acquired. The estimated fair value of the patents was determined with the assistance of an independent evaluationvaluation expert using a relief from royalty and a discounted cash flow methodology. As a result of the acquisition, Diodem immediately withdrew its patent infringement claims against us and the case was formally dismissed on May 31, 2005. We did not pay, and have no obligation to pay, any royalties to Diodem on past or future sales of our products, but we agreed to pay additional consideration if any of the acquired patents held by us are licensed to a third party by a certain date. In order to secure performance by us of these financial obligations, the parties entered into an intellectual property security agreement, pursuant to which, subject to the rights of existing creditors and the rights of any future creditors to the extent provided in the agreement, we granted Diodem a security interest in all of their rights, title and interest in the royalty patents. In September 2007, Diodem filed a motion with the United States DistrictU.S.District Court in the Central District of California requesting that the original case be reopened for limited discovery concerning Diodem’s claims that we breached various of our obligations and representations in the settlement agreement and seeking damages in the range of $3.85 million to $5.2 million plus costs and attorneys fees incurred in recovering said alleged damages. The District Court


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denied Diodem’s motion finding, in part, that if Diodem wishes to pursue claims for breach of the settlement agreement, it must file a new lawsuit for breach of contract. On February 20, 2008, Diodem filed a lawsuit for breach of the settlement agreement in Los Angeles Superior Court, naming us and a wholly-owned subsidiary, BL Acquisition II, Inc. as defendants. The complaint asserts two claims, both alleging breaches of the Agreement. Diodem seeks damages of nonot less than $4.0 million. On April 28, 2008, together with BL Acquisition II, Inc., we filed demurrers and a motion to strike that, in essence, requests the court to dismiss Diodem’s complaint. On June 20, 2008 the Court denied the demurrers and the motion and on July 21, 2008 we filed an answer to the complaint denying the allegations. On October 15, 2008 the lawsuit was dismissed with prejudice by Diodem pursuant to a settlement agreement among the parties which resolves all claims in the litigation and provides that we will make four payments to Diodem totaling approximately $950,000 through 2010, of which $85,000 will be paid by our liability insurance carriers. In the settlement agreement, we denied any wrongdoing. The settlement agreement contains confidentiality provisions that limit disclosure of the terms of the settlement except as required by SEC rule or regulation, under GAAP or pursuant to court order or law. Related to this matter, we incurred approximately $1.2 million in charges for the settlement and associated legal fees in the third quarter ended September 30, 2008, which reflects all the settlement payments to be made over the next two years.
National Laser Technology, Inc, or NLT, buys used dental lasers, predominately those originally sold by Biolase, and resells them to other dentists. On August 19, 2008, NLT brought an action against us in federal court in the Southern District of Indiana. NLT alleged that we violated Sections 1 and 2 of the Sherman Act, Section 43(a) of the Lanham Act, Section 17200 et seq. of the California Unfair Competition Act and tortiously interfered with NLT’s business relationships and prospective business advantage. NLT seeks a monetary award of three times the unquantified damages that NLT has allegedly sustained because of our alleged Sherman Act violations, unquantified damages for the rest of the claims, punitive damages and preliminary and permanent injunctive relief. On October 6, 2008, we answered the complaint, asserted several affirmative defenses and filed a counterclaim. We intendalleged that NLT violated Sections 1114 and 1125(a) of the Lanham Act and Section 17200 et seq. of the California Unfair Competition Act. We seek unquantified damages and a permanent injunction. NLT amended its Complaint on December 23, 2008, to vigorously defend Diodem’s claims.add a claim for conspiracy to monopolize in violation of Section 2 of the Sherman Act; we answered the Amended Complaint on January 15, 2009. We amended our counterclaims on February 19, 2009 to add a claim for federal copyright infringement and to seek associated damages. On October 21, 2008, NLT filed a motion for a preliminary injunction seeking to enjoin us from certain actions that NLT alleged violated section 1 and 2 of the Sherman Act. On November 24, 2008, we filed a motion for preliminary injunction seeking to enjoin NLT from selling modified Biolase lasers or using Biolase’s trademarks. Both motions are currently pending, and oral argument is scheduled for March 23, 2009. On March 10, 2009, we filed a motion to strike one of NLT’s witnesses from testifying at the preliminary injunction hearing or, in the alternative, continuing the hearing. That motion has not been ruled on.
On December 19, 2005, we entered into a Vendor Agreement with National Technology Leasing Corporation, or NTLC, in which NTLC was designated as our “Preferred Leasing/Financing Provider.” In September 2006, we gave notice to NTLC of the termination of the Vendor Agreement, and subsequently entered into a financing and distribution agreement with Henry Schein, Inc. On August 26, 2008, NTLC filed a lawsuit against us, Henry Schein, Inc. and a former employee of NTLC in California Superior Court in Placer County. NTLC alleges that we breached the Vendor Agreement by failing to provide the required notice of termination and asserts a claim for damages without specifying an amount. On October 10, 2008, we answered the complaint and asserted several affirmative defenses. On March 2, 2009, the lawsuit was dismissed with prejudice by NTLC pursuant to a settlement agreement among the parties which resolves all claims in the litigation and provides that we will make two payments to NTLC totaling approximately $20,000 during the first and second quarters of 2009. In the settlement agreement, we denied any wrongdoing. The settlement agreement contains confidentiality provisions that limit disclosure of the terms of the settlement except as required by SEC rule or regulation, under GAAP or pursuant to court order or law.
 
From time to time, we are involved in other legal proceedings incidental to our business, but at this time we are not party to any other litigation that management believes is material to our business.


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Item 4.  Submission of Matters to a Vote of Security Holders
 
None.
 
PART II
 
Item 5.  Market for the Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
 
Market Information
 
Our common stock is listed on the NASDAQ Stock Market LLC under the symbol “BLTI.” During the period in 2006 in which we have not been in compliance with NASDAQ rules, our stock has traded under the symbol “BLTIE.” The following table sets forth, for the periods indicated, the high and low sale prices of our common stock as reported by the NASDAQ Stock Market LLC and the dividends per share paid by us for each quarter of 20072008 and 2006:2007:
 
                
 High Low  High Low 
Fiscal Year Ended December 31, 2008        
First Quarter $4.64  $2.22 
Second Quarter  4.05   2.38 
Third Quarter  3.47   1.69 
Fourth Quarter  2.16   0.55 
Fiscal Year Ended December 31, 2007                
First Quarter $10.09  $7.89  $10.09  $7.89 
Second Quarter  10.50   5.70   10.50   5.70 
Third Quarter  8.10   5.51   8.10   5.51 
Fourth Quarter  7.00   2.20   7.00   2.20 
Fiscal Year Ended December 31, 2006        
First Quarter $9.60  $6.87 
Second Quarter  11.00   6.61 
Third Quarter  8.40   4.87 
Fourth Quarter  9.10   5.63 
 
No dividends were paid by us during 20072008 or 2006.2007.
 
As of March 7, 2008,11, 2009, the total number of record holders of our common stock was approximately 202.197. Based on information provided by our transfer agent and registrar, we believe that there are approximately 5,8645,837 beneficial owners of our common stock.
 
Dividend Policy
 
In July 2004, the Board of Directors approved a dividend policy to pay a cash dividend of $0.01 per share every other month to the stockholders of record at the time when declared by the Board of Directors. In August 2005, our Board of Directors authorized to discontinue payment of our dividend indefinitely. We anticipate that we will retain any earnings to support our operations and finance any growth and development of our business. Therefore we do not expect to pay cash dividends in the future.
 
Securities Authorized for Issuance under Equity Compensation Plans
 
See the information incorporated by reference to Part III, Item 12 of this report for information regarding securities authorized for issuance under our equity compensation plans.


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Stock Performance Graph (1)
 
The graph below compares the cumulative total stockholder return on $100 invested, assuming the reinvestment of all dividends, on December 31, 2002,2003, the last trading day before our 20032004 fiscal year, through the end of fiscal 20072008 with the cumulative total return on $100 invested for the same period in the NASDAQ Composite Index and the NASDAQ Medical Equipment Index.
 
COMPARISON OF 5 YEAR CUMULATIVE TOTAL RETURNRETURN*
Among Biolase Technology, Inc., The NASDAQ Composite Index
And The NASDAQ Medical Equipment Index
 
 
ASSUMES $100 INVESTED ON DECEMBER 31, 20022003
ASSUMES DIVIDENDS REINVESTED
FISCAL YEAR ENDED DECEMBER 31, 20072008
 
                                                
 Years Ended December 31, Years Ended December 31,
 2002 2003 2004 2005 2006 2007 2003 2004 2005 2006 2007 2008
Biolase Technology, Inc.  $100.00  $302.37  $198.71  $146.64  $160.59  $43.31  $100.00  $65.72  $48.50  $53.11  $14.32  $9.04 
                                                
NASDAQ Composite Index  100.00   149.34   161.86   166.64   186.18   205.48   100.00   110.06   112.92   126.61   138.33   80.65 
                                                
NASDAQ Medical Equipment  100.00   151.86   183.56   210.66   217.11   285.07   100.00   117.61   133.99   139.10   177.55   98.76 
                                    
 
 
(1)This section is not “soliciting material,” is not deemed “filed” with the Securities and Exchange Commission and is not to be incorporated by reference into any filing of BIOLASE Technology, Inc. under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date hereof and irrespective of any general incorporation language in any such filing.


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Item 6.  Selected Consolidated Financial Data
 
The following selected consolidated financial data should be read in conjunction with our consolidated financial statements and related notes contained elsewhere in this report and in our subsequent reports filed with the SEC, as well as Item 7 titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”
 
                                        
 Years Ended December 31,  Years Ended December 31, 
 2007 2006 2005 2004 2003  2008 2007 2006 2005 2004 
 (In thousands, except per share data)  (In thousands, except per share data) 
Consolidated Statements of Operations Data:
                                        
Net revenue $66,889  $69,700  $61,980  $60,651  $48,783  $64,625  $66,889  $69,700  $61,980  $60,651 
Cost of revenue(1)  32,364   33,211   31,051   24,642   17,533   31,963   32,364   33,211   31,051   24,642 
                      
Gross profit  34,525   36,489   30,929   36,009   31,250   32,662   34,525   36,489   30,929   36,009 
                      
Other income, net     6   80   32   76         6   80   32 
                      
Operating expenses:                                        
Sales and marketing(1)  26,648   24,400   24,730   23,126   16,800   22,040   26,648   24,400   24,730   23,126 
General and administrative(1)  10,941   11,709   16,869   11,506   5,096   12,006   10,941   11,709   16,869   11,506 
Engineering and development(1)  5,104   4,876   6,390   3,576   2,505   5,580   5,104   4,876   6,390   3,576 
Patent infringement legal settlement(3)  1,232      348      6,446 
Impairment of intangible asset(4)  232            747 
Impairment of property, plant and equipment(5)  355             
Restructuring charge(2)  802                  802          
Patent infringement legal settlement(3)     348      6,446    
Impairment of intangible asset           747    
                      
Total operating expenses  43,495   41,333   47,989   45,401   24,401   41,445   43,495   41,333   47,989   45,401 
                      
(Loss) income from operations  (8,970)  (4,838)  (16,980)  (9,360)  6,925   (8,783)  (8,970)  (4,838)  (16,980)  (9,360)
Non-operating income (loss)  1,853   311   (261)  559   226 
Non-operating (loss) income  (225)  1,853   311   (261)  559 
                      
(Loss) income before income taxes  (7,117)  (4,527)  (17,241)  (8,801)  7,151   (9,008)  (7,117)  (4,527)  (17,241)  (8,801)
Income tax provision (benefit)  163   162   269   14,413   (11,898)
Income tax provision  121   163   162   269   14,413 
                      
Net (loss) income as reported $(7,280) $(4,689) $(17,510) $(23,214) $19,049  $(9,129) $(7,280) $(4,689) $(17,510) $(23,214)
                      
Net (loss) income per share:                                        
Basic $(0.31) $(0.20) $(0.76) $(1.00) $0.91  $(0.38) $(0.31) $(0.20) $(0.76) $(1.00)
Diluted  (0.31)  (0.20)  (0.76)  (1.00)  0.84   (0.38)  (0.31)  (0.20)  (0.76)  (1.00)
Dividends declared and paid, per share $0.00  $0.00  $0.03  $0.03  $0.00  $0.00  $0.00  $0.00  $0.03  $0.03 
Shares used in computing net (loss) income per share:                                        
Basic  23,853   23,472   23,051   23,181   20,993   24,178   23,853   23,472   23,051   23,181 
Diluted  23,853   23,472   23,051   23,181   22,689   24,178   23,853   23,472   23,051   23,181 
Consolidated Balance Sheet Data*:
                                        
Working capital $10,993  $17,299  $12,822  $29,950  $10,139  $5,023  $10,993  $17,299  $12,822  $29,950 
Total assets  44,308   48,578   45,129   58,746   44,636   35,708   44,308   48,578   45,129   58,746 
Long-term liabilities  3,034   4,922   202   3,623   79   2,547   3,034   4,922   202   3,623 
Stockholders’ equity  16,491   21,966   21,294   33,978   31,238   9,390   16,491   21,966   21,294   33,978 
 
 
(1)2008, 2007 and 2006 includes $1.7 million, $1.3 million and $1.5 million, respectively, in total compensation cost related to stock options classified in cost of revenue, sales and marketing, general and administrative and engineering and development expenses.
 
(2)Refer to Note 1211 in the notes to the Consolidated Financial Statements.
 
(3)Refer to Note 87 in the notes to the Consolidated Financial Statements.
(4)Refer to Note 4 in the notes to the Consolidated Financial Statements.
(5)Refer to Note 1 in the notes to the Consolidated Financial Statements.
 
Certain amounts have been reclassified to conform to current year presentation.


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Item 7.  Management’s Discussion and Analysis of Financial Condition and Results of Operations
 
The following discussion of our results of operations and financial condition should be read together with the consolidated financial statements and the notes to those statements included elsewhere in this report and other information incorporated by reference in this report, if any. This discussion may contain forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from the results anticipated in any forward-looking statements as a result of a variety of factors, including those discussed in “Risk Factors” and elsewhere in this report.
 
Overview
 
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, or 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. Since 1998, we have sold approximately 6,3007,200 Waterlase systems including over 2,7003,300 Waterlase MD systems and more than 9,50012,000 laser systems in total in over 50 countries.
 
We offer two categories of laser system products: (i) Waterlase systemsystems and (ii) Diolase system.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 Diolase family of diode laser system productssystems to perform soft tissue and cosmetic procedures, including tooth whitening.
 
On August 8, 2006, we entered into a License and Distribution Agreement with Henry Schein, Inc., or HSIC, a large distributor of healthcare products to office-based practitioners, pursuant to which we granted HSIC the exclusive right to distribute our complete line of dental laser systems, accessories and services in the United States and Canada. The agreement has an initial term of three years, following which it will automatically renew for an additional period of three years, provided that HSIC has achieved its minimum purchase requirements. Under the agreement, HSIC is obligated to meet certain minimum purchase requirements and is entitled to receive incentive payments if certain purchase targets are achieved. If HSIC has not met the minimum purchase requirements at the midpoint of each of the first two three-year periods, we will have the option, upon repayment of a portion of the license fee, to (i) shorten the remaining term of the agreement to one year, (ii) grant distribution rights held by HSIC to other persons (or distribute products ourselves), (iii) reduce certain discounts on products given to HSIC under the agreement and (iv) cease paying future incentive payments. We maintain the right to grant certain intellectual property rights to third parties, but by doing so may incur the obligation to refund a portion of the upfront license fee to HSIC.
 
On May 9, 2007, we entered intoAddendum 1 to License and Distribution Agreementwith HSIC, which addendum was effective as of April 1, 2007 and modified the License and Distribution Agreement entered into with HSIC on August 8, 2006, to add the terms and conditions under which HSIC has the exclusive right to distribute our newezlasediode dental laser system in the United States and Canada. In the Addendum, separate minimum purchase requirements are established for theezlasesystem. If HSIC has not met the minimum purchase requirement for any12-month period ending on March 31, we will have the option, upon 30 days written notice, to (i) convertezlasedistribution rights to a non-exclusive basis for a minimum period of one year, after which period we would have the option to withdrawezlasedistribution rights, and (ii) reduce the distributor discount onezlaseproducts.
 
On March 3, 2008, we entered into a second addendum to the HSIC agreement that modifies certain terms of the initial agreement as amended. Pursuant to amendment 2 to the agreement, HSIC is obligated to meet certain minimum purchase requirements and is entitled to receive incentive payments if certain purchase


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targets are achieved. If HSIC has not met the minimum purchase requirements, we will have the option to (i) shorten the remaining term of the Agreement to one year, (ii) grant distribution rights held by HSIC to other persons (or distribute products ourselves), (iii) reduce certain discounts on products given to HSIC under the Agreement and (iv) cease paying future incentive payments. Additionally, under certain circumstances, if HSIC has not met the minimum purchase requirements, we have the right to purchase back the exclusive distributor rights granted to HSIC under the agreement. We also agreed to actively promote Henry Schein Financial Services as our exclusive leasing and financing partner.
 
On December 23, 2008, we entered into a letter agreement with HSIC to extend the term of the agreement through December 31, 2010.
On February 27, 2009, we entered into a letter agreement with HSIC amending the term of the License and Distribution Agreement through March 31, 2010.(See Liquidity and Capital Resources) This amendment includes certain minimum purchase requirements through the term of the agreement. HSIC also has the option to extend the term of the Agreement for two additional one-year terms based on certain minimum purchase requirements. In addition, HSIC will become our distributor in certain international countries including Germany, Spain, Australia and New Zealand and will be permitted to distribute our products in those additional markets where we do not have current distribution agreements in place.
We intend to augment the activities of HSIC in the United States and Canada with the efforts of our direct sales force; however, our future revenue will be largely dependent upon the efforts and success of HSIC in selling our products. Since September 1, 2006, nearly all of our domestic sales were made through HSIC and we expect this to continue for the foreseeable future. We cannot assure you that HSIC will devote sufficient resources to selling our products or, even if sufficient resources are directed to our products, that such efforts will be sufficient to increase net revenue.
 
Critical Accounting Policies
 
The preparation of consolidated financial statements and related disclosures in conformity with accounting principles generally accepted in the United States requires us to make judgments, assumptions and estimates that affect the amounts reported. The following is a summary of those accounting policies that we believe are necessary to understand and evaluate our reported financial results.
 
Revenue Recognition.  Effective September 1, 2006, nearly all of our domestic sales are to HSIC; prior to this date, we sold our products directly to customers through our direct sales force. Internationally, we sell products through direct sales representatives and through distributors. We recognize revenue in accordance with SEC Staff Accounting Bulletin No. 104,Revenue Recognition, which requires that four basic criteria must be met before revenue can be recognized: (i) persuasive evidence of an arrangement exists; (ii) delivery has occurred and title and the risks and rewards of ownership have been transferred to our customer, or services have been rendered; (iii) the price is fixed or determinable; and (iv) collectibility is reasonably assured.
 
We apply Emerging Issues Task Force (“EITF”)00-21,Accounting for Revenue Arrangements with Multiple Deliverables, which requires us to evaluate whether the separate deliverables in our arrangements can be unbundled in our revenue recognition. Sales of our Waterlase systems include separate deliverables consisting of the product, disposables used with the Waterlase system, installation and training. For these sales, we apply the residual value method, which requires us to allocate to the delivered elements the total arrangement consideration less the fair value of the undelivered elements. Sales of our Diode systems include separate deliverables consisting of the product, disposables and training. For these sales, we apply the relative fair value method, which requires us to allocate the total arrangement consideration to the relative fair value of each element. Revenue attributable to the undelivered elements, primarily training and installation, are included in deferred revenue when the product is shipped and are recognized when the related service is performed or upon expiration of time offered under the agreement.
 
The key judgment related to our revenue recognition relates to the collectibility of payment from the customer. We evaluate the customer’s credit worthiness prior to the shipment of the product. Based on our


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assessment of the credit information available to us, we may determine the credit risk is higher than normally acceptable, and we will either decline the purchase or defer the revenue until payment is reasonably assured.
 
Although all sales are final, we accept returns of products in certain, limited circumstances and record a provision for sales returns based on historical experience concurrent with the recognition of revenue. The sales returns allowance is recorded as a reduction of accounts receivable and revenue.
 
We recognize revenue for royalties under licensing agreements for our patented technology when the product using our technology is sold. We estimate and recognize the amount earned based on historical performance and current knowledge about the business operations of our licensees. Our estimates have been consistent with amounts historically reported by the licensees.


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We may offer sales incentives and promotions on our products. We applyEITF 01-09, Accounting for Consideration Given by a Vendor to a Customer (Including a Reseller of the Vendor’s Products), in determining the appropriate treatment of the related costs of these programs.
 
Accounting for Stock-Based Payments.  Effective January 1, 2006, we adopted the provisions of Financial Accounting Standard 123 (revised),Share-Based Payment, or FAS 123R, using the modified prospective transition method. Prior to the adoption of FAS 123R, we accounted for share-based payments to employees using the intrinsic value method under Accounting Principles Board Opinion No. 25, or APB 25,Accounting for Stock Issued to Employees, and the related interpretations. Under the provisions of APB 25, stock option awards were accounted for using fixed plan accounting whereby we recognized no compensation expense for stock option awards because the exercise price of options granted was equal to the fair value of the common stock at the date of grant. In March 2005, the SEC issued Staff Accounting Bulletin 107, or SAB 107, regarding the SEC Staff’s interpretation of FAS 123R, which provides the Staff’s views regarding interactions between FAS 123R and certain SEC rules and regulations and provides interpretations of the valuation of share-based payments for public companies. We have incorporated the provisions of SAB 107 in our adoption of FAS 123R.
 
Under the modified prospective transition method, the provisions of FAS 123R apply to new awards and to awards outstanding on January 1, 2006 and subsequently modified, repurchased or cancelled. Under the modified prospective transition method, compensation expense recognized in 2006 includes compensation costs for all share-based payments granted prior to, but not yet vested as of January 1, 2006, based on the grant-date fair value estimated in accordance with the original provisions of FAS 123, and compensation cost for all share-based payments granted subsequent to January 1, 2006, based on the grant-date fair value estimated in accordance with the provisions of FAS 123R. Prior periods were not restated to reflect the impact of adopting the new standard.
 
Valuation of Accounts Receivable.  We maintain an allowance for uncollectible accounts receivable to estimate the risk of extending credit to customers. We evaluate our allowance for doubtful accounts based upon our knowledge of customers and their compliance with credit terms. The evaluation process includes a review of customers’ accounts on a regular basis which incorporates input from sales, service and finance personnel. The review process evaluates all account balances with amounts outstanding 60 days and other specific amounts for which information obtained indicates that the balance may be uncollectible. The allowance for doubtful accounts is adjusted based on such evaluation, with a corresponding provision included in general and administrative expenses. Account balances are charged off against the allowance when we feel it is probable the receivable will not be recovered. We do not have any off-balance-sheet credit exposure related to our customers.
 
Valuation of Inventory.  Inventory is valued at the lower of cost, determined using thefirst-in, first-out method, or market. We periodically evaluate the carrying value of inventory and maintain an allowance for excess and obsolete inventory to adjust the carrying value as necessary to the lower of cost or market. We evaluate quantities on hand, physical condition and technical functionality, as these characteristics may be impacted by anticipated customer demand for current products and new product introductions. Unfavorable changes in estimates of excess and obsolete inventory would result in an increase in cost of revenue and a decrease in gross profit.


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Valuation of Long-Lived Assets.  Property, plant and equipment, and certain intangibles with finite lives are amortized over their useful lives. Useful lives are based on our estimate of the period that the assets will generate revenue or otherwise productively support our business goals. We monitor events and changes in circumstances which could indicate that the carrying balances of long-lived assets may exceed the undiscounted expected future cash flows from those assets. If such a condition were to exist, we would recognize an impairment loss based on the excess of the carrying amount over the fair value of the assets.
 
Valuation of Goodwill and Other Intangible Assets.  Goodwill and other intangible assets with indefinite lives are not amortized but are tested for impairment annually or whenever events or changes in circumstances indicate that the asset might be impaired. We conducted our annual impairment analysis of our goodwill and trade names as of June 30, 2008, 2007 2006 and 2005,2006, and concluded there had been no impairment in trade names


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and no impairment in goodwill. Due to the decline in our stock price and market capitalization during the fourth quarter of 2008 caused by adverse equity market conditions and the general economic environment, we updated our impairment analysis. We concluded that there had not been any impairment. However, we will closely monitor our stock price and market capitalization and will perform such analysis on a quarterly basis, if needed. If our stock price and market capitalization continue to decline, we may need to impair our goodwill and other intangible assets. At December 31, 2008, as a result of our new Waterlase Dentistry branding strategy, we recorded an impairment of trade names in the amount of $232,000. During the period June 30, 20072008 through December 31, 2007,2008, we reviewed critical indicators and determined that no other triggering events occurred that would have a material effect on the value of thesethe remaining assets.
 
Warranty Cost.  Waterlase systems sold are covered by a warranty against defects in material and workmanship for a period of one year while ourezlase system warranty period is up to two years. Estimated warranty expenses are recorded as an accrued liability, with a corresponding provision to cost of revenue. This estimate is recognized concurrent with the recognition of revenue. The accrual is based on our historical experience and our expectation of future conditions. An increase in warranty claims or in the costs associated with servicing those claims would result in an increase in the accrual and a decrease in gross profit.
 
Litigation and Other Contingencies.  We regularly evaluate our exposure to threatened or pending litigation and other business contingencies. Because of the uncertainties related to the amount of loss from litigation and other business contingencies, the recording of losses relating to such exposures requires significant judgment about the potential range of outcomes. As additional information about current or future litigation or other contingencies becomes available, we will assess whether such information warrants the recording of expense relating to contingencies. To be recorded as expense, a loss contingency must be both probable and reasonably estimable. If a loss contingency is material but is not both probable and estimable, we will disclose the matter in the notes to the consolidated financial statements.
 
Income Taxes.  Based upon our operating losses during 20072008 and 20062007 and the available evidence, management determined that it is more likely than not that the deferred tax assets as of December 31, 20072008 will not be realized, excluding a portion of the foreign deferred assets in the amount of $50,000.$29,000. Consequently, we established a valuation allowance against our net deferred tax asset, excluding the foreign operations, in the amount of $25.8$27.4 and $26.6$25.8 million as of December 31, 20072008 and December 31, 2006,2007, respectively. In this determination, we considered factors such as our earnings history, future projected earnings and tax planning strategies. If sufficient evidence of our ability to generate sufficient future taxable income tax benefits becomes apparent, we may reduce our valuation allowance, resulting in tax benefits in our statement of operations and in additionalpaid-in-capital. Management evaluates the potential realization of our deferred tax assets and assesses the need for reducing the valuation allowance periodically.
 
Off-Balance Sheet Arrangements.
 
We have no off-balance sheet financing or contractual arrangements.


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Results of Operations
 
The following table sets forth certain data from our consolidated statements of operations for the years ended December 31, 2008, 2007 2006 and 2005,2006, expressed as percentages of revenue:
 
                        
 Years Ended December 31,  Years Ended December 31, 
 2007 2006 2005  2008 2007 2006 
Net revenue  100.0%  100.0%  100.0%  100.0%  100.0%  100.0%
Cost of revenue  48.4   47.6   50.1   49.5   48.4   47.6 
              
Gross profit  51.6   52.4   49.9   50.5   51.6   52.4 
              
Other income, net     0.0   0.1 
       
Operating expenses:                        
Sales and marketing  39.8   35.0   39.9   34.1   39.8   35.0 
General and administrative  16.4   16.8   27.3   18.5   16.4   16.8 
Engineering and development  7.6   7.0   10.3   8.6   7.6   7.0 
Patent infringement legal settlement  1.9      0.5 
Impairment of intangible asset  0.4       
Impairment of property, plant and equipment  0.6       
Restructuring  1.2            1.2    
Patent infringement legal settlement     0.5    
              
Total operating expenses  65.0   59.3   77.5   64.1   65.0   59.3 
              
Loss from operations  (13.4)  (6.9)  (27.5)  (13.6)  (13.4)  (6.9)
Non-operating income (loss), net  2.8   0.4   (0.4)
Non-operating (loss) income, net  (0.3)  2.8   0.4 
              
Loss before income taxes  (10.6)  (6.5)  (27.9)  (13.9)  (10.6)  (6.5)
Income tax provision  0.3   0.2   0.4   0.2   0.3   0.2 
              
Net loss  (10.9)%  (6.7)%  (28.3)%  (14.1)%  (10.9)%  (6.7)%
              
 
In the fourth quarter of fiscal 2007, we recorded certain amounts togain (loss) on foreign currency transactionsrelating to prior 2007 quarters resulting in a reduction of our net loss by $1.0 million (or $0.04 per share) for the quarter and year ended December 31, 2007. The adjustments resulted from the misapplication of Statement of Financial Accounting Standard No. 52,Foreign Currency Translation, to certain foreign-currency transactions between BIOLASE Technology, Inc. and certain of our foreign subsidiaries. We concluded that the amounts were not material to previously-reported interim periods.
 
The following table summarizes our net revenues by category for the years ended December 31, 2008, 2007 2006 and 20052006 (dollars in thousands):
 
                                          
 Years Ended December 31,  Years Ended December 31, 
 2007 2006 2005  2008 2007 2006 
Waterlase systems $45,279   68% $55,161   79% $51,648   83% $40,328   62% $45,279   68% $55,161   79%
Diolase systems  9,453   14%  3,557   5%  5,423   9%
Diode systems  12,040   19%  9,453   14%  3,557   5%
Non-laser systems  8,353   12%  10,134   15%  4,415   7%  8,642   13%  8,353   12%  10,134   15%
                          
Products and services  63,085   94%  68,852   99%  61,486   99%  61,010   94%  63,085   94%  68,852   99%
License fees and royalty  3,804   6%  848   1%  494   1%  3,615   6%  3,804   6%  848   1%
                          
Net revenue $66,889   100% $69,700   100% $61,980   100% $64,625   100% $66,889   100% $69,700   100%
                          
Year Ended December 31, 2008 Compared With Year Ended December 31, 2007
Net Revenue.  Net revenue for the year ended December 31, 2008 was $64.6 million, a decrease of $2.3 million, or 3%, as compared with net revenue of $66.9 million for the year ended December 31, 2007.


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Laser system net revenues decreased by approximately 4% in 2008 compared to 2007. Sales of our Waterlase systems decreased $5.0 million, or 11%, for the year ended December 31, 2008 compared to the prior year. We feel the continued adverse worldwide economic environment has been a significant cause for the decreased sales as dentists may be delaying their decision to purchase higher priced capital equipment. Sales of our Diode systems increased $2.6 million, or 27% in 2008 compared to 2007. Our ezlase diode system, which was released in limited quantities in the first quarter of 2007, accounted for the increase.
Non-laser system net revenue, which includes consumable products, advanced training programs and extended service contracts and shipping revenue, increased by approximately 3% for the year ended December 31, 2008 as compared to the same period of 2007. An increase in training and services revenues was partially offset by a decrease in consumable product sales in 2008 compared to 2007.
Domestic revenues were $48.5 million, or 75% of net revenue, for the year ended December 31, 2008 versus $41.6 million, or 62% of net revenue, for the year ended December 31, 2007. International revenues for 2008 were $16.1 million, or 25% of net revenues compared to $25.3 million, or 38% of net revenue for 2007.
License fees and royalty income decreased to $3.6 million for 2008 from $3.8 million for 2006, as a result of lower amortization of license fees in 2008 and lower royalties received from third parties.
Gross Profit.  Gross profit for the year ended December 31, 2008 was $32.7 million, or 51% of net revenue, a decrease of $1.9 million, as compared with gross profit of $34.5 million, or 52% of net revenue for the year ended December 31, 2007. Gross profit excluding license fees and royalty revenue was 48% of products and service revenue for 2008 compared to 49% for 2007. The decrease in gross margin was a result of discounts and promotions.
Operating Expenses.  Operating expenses for the year ended December 31, 2008 were $41.4 million, or 64% of net revenue, a $2.1 million decrease as compared with $43.5 million, or 65% of net revenue for the year ended December 31, 2007. The decrease was driven mainly by our corrective actions taken in reducing sales and marketing expenses partially offset by increases in legal and legal settlement expenses.
Sales and Marketing Expense.  Sales and marketing expenses for the year ended December 31, 2008 decreased by $4.6 million, or approximately 17%, to $22.0 million, or 34% of net revenue, as compared with $26.6 million, or 40% of net revenue, for the year ended December 31, 2007. Convention and seminar expenses decreased by $2.0 million in 2008 compared to 2007. Also decreasing were commission on lower sales and travel and entertainment expenses compared to 2007. While we expect to continue investing in sales and marketing expenses and programs in order to grow our revenues, we believe it is likely that these expenses, excluding commissions, will decrease in 2009 compared to 2008.
General and Administrative Expense.  General and administrative expenses for the year ended December 31, 2008 increased by $1.1 million, or 10%, to $12.0 million, or 19% of net revenue, as compared with $10.9 million, or 16% of net revenue, for the year ended December 31, 2007. The increase in general and administrative expenses resulted primarily from a $665,000 increase in legal fees as well as increased payroll related expense partially offset by reduced audit fees. We believe that our general and administrative expenses are likely to decrease in 2009. However, we are currently involved in certain litigation matters that may result in larger than expected fees.
Engineering and Development Expense.  Engineering and development expenses for the year ended December 31, 2008 increased by $476,000, or 9%, to $5.6 million, or 9% of net revenue, as compared with $5.1 million, or 8% of net revenue, for the year ended December 31, 2007. The increase was primarily related to an increase in payroll related expenses of $441,000. We expect to continue to invest in development projects and personnel in 2009, however, we expect the overall expense to decrease in 2009.
Patent Infringement Legal Settlement.  In October 2008, we reached a settlement agreement with Diodem, LLC and recorded a charge of $1.2 million for the settlement and associated legal fees.
Impairment of Intangible Asset.  In connection with our recently established product branding strategy, we have recorded an impairment of $232,000 related to trademarks.


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Impairment of Property, Plant and Equipment.  In the first quarter of 2009, we made the decision to begin transitioning our sales in Germany from direct through our foreign subsidiary to sales through a distributor. In connection with this transition, we have placed our buildings located in Floss, Germany for sale. Based on current market information and economic climate in Germany, we recorded an impairment of $355,000 on the land and building.
Non-Operating Income (Loss)
Gain (Loss) on Foreign Currency Transactions.  We realized a $186,000 loss on foreign currency transactions for the year ended December 31, 2008 due to our treatment of inter-company balances as short-term , compared to a $1.4 million gain on foreign currency transactions for the year ended December 31, 2007. The decrease is primarily due to changes in exchange rates between the U.S. dollar and the Euro and the Australian and New Zealand dollar and an increase in foreign currency denominated transactions and balances in 2008 compared to 2007. In mid-October 2008, we significantly reduced the inter-company payable due from the foreign subsidiaries to us by making an approximately equal capital contribution which did not result in a significant change in global cash positions. However, subsequent to the contribution date, foreign currency transactions gains and losses recorded on the remaining inter-company balances are expected to be significantly reduced. Additionally, as we transition from sales through our foreign subsidiaries to sales through distributors, the amount of inter-company transactions and related balances should be reduced.
Interest Income.  Interest income results from interest earned on our cash and investments balances. Interest income for the year ended December 31, 2008 was $118,000 as compared to $580,000 for the year ended December 31, 2007 due to lower interest rates on lower average cash balances.
Interest Expense.  Interest expense consists primarily of interest on outstanding balances on our line of credit, standby fees under the line of credit, and the periodic use of the line during the year. Interest expense for the year ended December 31, 2008 was $157,000 as compared to $81,000 for the year ended December 31, 2007, due to increased borrowings in 2008 as compared to 2007.
Income Taxes.  An income tax provision of $121,000 was recognized for the year ended December 31, 2008 as compared to $163,000 for the year ended December 31, 2007. As of December 31, 2008, we had net operating loss carryforwards for federal and state purposes of approximately $59.5 million and $27.6 million, respectively, which will begin expiring in 2009. As of December 31, 2008, we had research and development credit carryforwards for federal and state purposes of approximately $835,000 and $440,000, respectively, which will begin expiring in 2011 for federal purposes and will carryforward indefinitely for state purposes. The utilization of net operating loss and credit carryforwards may be limited under the provisions of Internal Revenue Code Section 382 and similar state provisions.
 
Year Ended December 31, 2007 Compared With Year Ended December 31, 2006
 
Net Revenue.  Net revenue for the year ended December 31, 2007 was $66.9 million, a decrease of $2.8 million, or 4%, as compared with net revenue of $69.7 million for the year ended December 31, 2006. Laser system net revenues decreased by approximately 7% in 2007 compared to 2006.


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Non-laser system net revenue, which includes consumable products, advanced training programs and extended service contracts and shipping revenue, decreased by approximately 18% for the year ended December 31, 2007 as compared to the same period of 2006. The decrease in non-laser system net revenue is primarily attributed to the recognition in 2006 of $1.3 million of revenue related to training credits that expired during 2006 compared with $164,000 of similar revenue in 2007. Additionally, consumable product sales decreased approximately 9% in 2007 compared to 2006. Training and shipping revenue also decreased partially offset by an increase in revenue related to the sale of extended service contracts.
 
Sales of our Waterlase systems comprised 68% and 79% of our net revenue for the years ended December 31, 2007 and 2006, respectively, while sales of our Diolase family ofDiode laser systems comprised 14% and 5% of our revenue for the years ended December 31, 2007 and 2006, respectively. The increase in DiolaseDiode revenue is mainly attributed to the launch of ourezlasesoft tissue diode laser system in the first quarter of 2007.


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Domestic revenues were $41.6 million, or 62% of net revenue, for the year ended December 31, 2007 versus $43.7 million, or 63% of net revenue, for the year ended December 31, 2006. International revenues for 2007 were $25.3 million, or 38% of net revenues for 2007 compared to $26.0 million, or 37% of net revenue for 2006.
 
We believe that there were various factors which, in the aggregate, had a negative effect on laser system sales in 2007 compared to 2006. General economic conditions with respect to credit availability may have caused dentists considering the purchase of a Waterlase MD laser system to postpone their purchase decision. Additionally, we believe that a variety of sales and marketing execution issues, which led to a management change in November 2007, negatively affected our Waterlase MD system sales.
 
License fees and royalty income increased to $3.8 million for 2007 from $848,000 for 2006, reflecting the amortization of license fees and related payments received from HSIC and P&G.
 
Gross Profit.  Gross profit for the year ended December 31, 2007 was $34.5 million, or 52% of net revenue, a decrease of $2.0 million, as compared with gross profit of $36.5 million, or 52% of net revenue for the year ended December 31, 2006. Gross profit excluding license fees and royalty revenue was 49% of products and service revenue for 2007 compared to 52% for 2006. Fixed expenses included in cost of revenue represented a higher percentage of the comparatively lower revenues year over year, resulting in a lower margin on products and services revenue.
 
Other Income, Net.  Other income consists of gain (loss) on sale of assets. There was no other income, net for the year ended December 31, 2007 compared to $6,000 for the year ended December 31, 2006.
 
Operating Expenses.  Operating expenses for the year ended December 31, 2007 were $43.5 million, or 65% of net revenue, a $2.2 million increase as compared with $41.3 million, or 59% of net revenue for the year ended December 31, 2006. The increase was driven mainly by convention, seminar, and travel and entertainment expenses described below underSales and Marketing Expense and severance-related expenses as described below underRestructuring Charge.
 
Sales and Marketing Expense.  Sales and marketing expenses for the year ended December 31, 2007 increased by $2.2 million, or approximately 9%, to $26.6 million, or 40% of net revenue, as compared with $24.4 million, or 35% of net revenue, for the year ended December 31, 2006. Convention and seminar expenses increased by $2.0 million in 2007 compared to 2006, and travel and entertainment expenses increased by $670,000 compared to 2006. These increases were partially offset by a $282,000 decrease in payroll related costs primarily due to lower commission expense on decreased sales. While we expect to continue investing in sales and marketing expenses and programs in order to grow our revenues, we believe it is likely that these expenses, excluding commissions, will decrease in 2008 compared to 2007.
 
General and Administrative Expense.  General and administrative expenses for the year ended December 31, 2007 decreased by $768,000, or 7%, to $10.9 million, or 16% of net revenue, as compared with $11.7 million, or 17% of net revenue, for the year ended December 31, 2006. The decrease in general and administrative expenses resulted primarily from a $1.2 million decrease in the accounts receivable bad debt


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expense largely due to improved collections from international customers and a $226,000 decrease in legal, regulatory, and consulting expenses. This decrease was offset partially by an increase in audit fees of $463,000 related to increased 2006 audit fees incurred in 2007 and recruiting fees of approximately $209,000 incurred in connection with our search for a new Chief Executive Officer. We believe that our general and administrative expenses are likely to increase nominally in 2008.
 
Engineering and Development Expense.  Engineering and development expenses for the year ended December 31, 2007 increased by $228,000, or 5%, to $5.1 million, or 8% of net revenue, as compared with $4.9 million, or 7% of net revenue, for the year ended December 31, 2006. The increase was primarily related to an increase in payroll related expenses of $316,000. We expect to invest in more development projects and personnel in 2008, and accordingly it is probable that our engineering and development expenses will increase in 2008.
 
Restructuring Charge.  Restructuring expense for the year ended December 31, 2007 amounted to $802,000, or 1% of net revenue. We incurred no restructuring expense in 2006. The 2007 expense is primarily due to severance-related costs incurred in the fourth quarter of 2007 in connection with the terminations of our President and Chief Executive Officer and our Executive Vice President, Global Sales and Marketing which were both effective November 5, 2007. In the fourth quarter of 2007, we also terminated eleven other employees, across all functions, in an effort to better rationalize resources and streamline operations.


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Patent Infringement Legal Settlement.  In January 2005, we acquired the intellectual property portfolio of Diodem, consisting of certain U.S. and international patents of which four were asserted against us, and settled the existing litigation between us and Diodem, for consideration of $3.0 million in cash, 361,664 shares of our common stock, and a five-year warrant to purchase 81,037 shares of common stock at an exercise price of $11.06 per share. In connection with the Diodem patent litigation settlement, 45,208 shares of our common stock were issued to Diodem and placed in an escrow account. In July 2006, we released these shares from escrow and accordingly, we recorded a $348,000 charge based on the fair market value of our common stock.
 
Non-Operating Income (Loss)
 
Gain (Loss) on Foreign Currency Transactions.  We realized a $1.4 million gain on foreign currency transactions for the year ended December 31, 2007 due to our treatment of intercompany balances as short-term , compared to a $251,000 gain on foreign currency transactions for the year ended December 31, 2006. The increase is due to changes in exchange rates between the U.S. dollar and the Euro and the Australian and New Zealand dollar and an increase in foreign currency denominated transactions and balances in 2007 compared to 2006. We have not engaged in hedging transactions to offset foreign currency fluctuations. Therefore, we are at risk for changes in the value of the dollar relative to the value of these foreign currencies.
 
Interest Income.  Interest income results from interest earned on our cash and investments balances. Interest income for the year ended December 31, 2007 was $580,000 as compared to $448,000 for the year ended December 31, 2006.
 
Interest Expense.  Interest expense consists primarily of interest on outstanding balances on our line of credit, standby fees under the line of credit, and the periodic use of the line during the year. Interest expense for the year ended December 31, 2007 was $81,000 as compared to $388,000 for the year ended December 31, 2006, given borrowings were lower in 2007 as compared to 2006.
 
Income Taxes.  An income tax provision of $163,000 was recognized for the year ended December 31, 2007 as compared to $162,000 for the year ended December 31, 2006. As of December 31, 2007, we had net operating loss carryforwards for federal and state purposes of approximately $55.8 million and $23.2 million, respectively, which will begin expiring in 2008. As of December 31, 2007, we had research and development credit carryforwards for federal and state purposes of approximately $804,000 and $447,000, respectively, which will begin expiring in 2011 for federal purposes and will carryforward indefinitely for state purposes. The utilization of net operating loss and credit carryforwards may be limited under the provisions of Internal Revenue Code Section 382 and similar state provisions.


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Year Ended December 31, 2006 Compared With Year Ended December 31, 2005
 
Net Revenue.  Net revenue for the year ended December 31, 2006 was $69.7 million, an increase of $7.7 million, or 12%, as compared with net revenue of $62.0 million for the year ended December 31, 2005. Laser system net revenues increased by approximately 8% in 2006 primarily as a result of increased sales of our Waterlase MD system. In 2006, when compared to 2005, unit sales of all Waterlase laser systems increased by 18%, while unit sales of Diode laser systems decreased by 14%. Most of our focus for the last several years has been on the Waterlase system, which has negatively affected our sales of Diode laser systems.
Non-laser system net revenues, which includes consumable products, advanced training programs and extended service contracts, increased by approximately 40% for the year ended December 31, 2006 as compared to the same period of 2005. Primarily responsible for the increase in non-laser system net revenues was a 57% increase in sales of consumable products, such as handpieces and laser tips, and the recognition of approximately $821,000 in revenue previously recorded as a deferred revenue obligation that was subsequently determined to have been earned.
License fees and royalty income increased to $848,000 in 2006 from $494,000 in 2005. The increase in 2006 was generated by $556,000 in amortization of the $5 million deferred license fee received from HSIC in August 2006, partially offset by a reduction in royalty income from licensees.
Sales of our Waterlase systems comprised 79% and 83% of our net revenue for the years ended December 31, 2006 and 2005, respectively. Sales of our Diode laser systems comprised 5% and 9% of our revenue for the years ended December 31, 2006 and 2005, respectively.
Domestic revenues were $43.7 million, or 63% of net revenue, for the year ended December 31, 2006 versus $43.6 million, or 70% of net revenue, for the year ended December 31, 2005. For the first six months of 2006, domestic revenues were 15% lower than domestic revenues for the first six months of 2005. For the last six months of 2006, domestic revenues were 17% higher than domestic revenues for the last six months of 2005. We believe this reversal in the trend of declining domestic sales was primarily the result of significant restructuring that occurred in our domestic sales management and field sales personnel. International revenues for the year ended December 31, 2006 increased by 42% to $26.0 million, or 37% of net revenue, as compared with $18.4 million, or 30% of net revenue, for the year ended December 31, 2005. The significant increase in international revenues was primarily the result of continued growth in sales of our Waterlase laser systems.
Gross Profit.  Gross profit for the year ended December 31, 2006 was $36.5 million, or 52% of net revenue, an increase of $5.6 million, as compared with gross profit of $30.9 million, or 50% of net revenue for the year ended December 31, 2005. Higher gross margins on products sales in 2006 versus 2005 contributed slightly more than half of the increase in gross profit as a percentage of net revenues. These higher margins resulted from comparatively lower production costs and greater overhead absorption as total unit sales of our flagship Waterlase MD laser system increased by approximately 22% over 2005. Also, our gross margin benefited from the aforementioned recognition in 2006 of approximately $0.8 million in revenue previously recorded as a deferred revenue obligation, $556,000 in amortization of the $5 million deferred license fee received from HSIC in August 2006 and greater sales of extended service contracts, partially offset by an increase in warranty related expenses.
Other Income, Net.  Other income consists of gain (loss) on sale of assets. Other income, net was $6,000 for the year ended December 31, 2006 compared to $80,000 for the year ended December 31, 2005. For of the years ended December 31, 2006 and 2005, other income included $16,000 and $63,000, respectively, related to the sale and leaseback of our former facility in San Clemente, California in March 2001, partially offset by lesser gain or loss amounts on other sales of assets.
Operating Expenses.  Operating expenses for the year ended December 31, 2006 were $41.3 million, or 59% of net revenue, a $6.7 million decrease as compared with $48 million, or 77% of net revenue for the year ended December 31, 2005. The decrease was driven mainly by lower spending on audit, legal and compliance costs described below underGeneral and Administrative Expenseand the cost of the SurgiLight license recorded in 2005 described below underEngineering and Development Expense.


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Sales and Marketing Expense.  Sales and marketing expenses for the year ended December 31, 2006 decreased by $330,000, or approximately 1%, to $24.4 million, or 35% of net revenue, as compared with $24.7 million, or 40% of net revenue, for the year ended December 31, 2005. The decrease related primarily to a reduction in domestic payroll related costs of approximately $900,000 and convention fees of approximately $1.6 million, partially offset by an increase in advertising expenditures of approximately $739,000 and sales and marketing expenses of approximately $1.5 million for our subsidiaries established in Australia and New Zealand in 2006.
General and Administrative Expense.  General and administrative expenses for the year ended December 31, 2006 decreased by $5.2 million, or 31%, to $11.7 million, or 17% of net revenue, as compared with $16.9 million, or 27% of net revenue, for the year ended December 31, 2005. The decrease in general and administrative expenses resulted primarily from reduced spending on audit fees of approximately $2.5 million and decreased legal, compliance and consulting fees of approximately $2.0 million. Included in 2005 expenses were costs associated with the restatements of our 2002 and 2003 financial statements and delayed 2004 and 2005 financial statement filings as well as costs incurred to comply with Section 404 of the Sarbanes-Oxley Act, or SOX 404.
Engineering and Development Expense.  Engineering and development expenses for the year ended December 31, 2006 decreased by $1.5 million, or 24%, to $4.9 million, or 7% of net revenue, as compared with $6.4 million, or 10% of net revenue, for the year ended December 31, 2005. The decrease was primarily related to the $2.0 million purchase of the SurgiLight license in the first quarter of 2005, including transaction costs of $200,000, partially offset by increased expenses related to the development of new products, includingezlase.
Patent Infringement Legal Settlement.  In January 2005, we acquired the intellectual property portfolio of Diodem, consisting of certain U.S. and international patents of which four were asserted against us, and settled the existing litigation between us and Diodem, for consideration of $3.0 million in cash, 361,664 shares of our common stock, and a five-year warrant to purchase 81,037 shares of common stock at an exercise price of $11.06 per share. In connection with the Diodem patent litigation settlement, 45,208 shares of our common stock were issued to Diodem and placed in an escrow account. In July 2006, we released these shares from escrow and accordingly, we recorded a $348,000 charge based on the fair market value of our common stock.
Non-Operating Income (Loss)
Gain (Loss) on Foreign Currency Transactions.  We realized a $251,000 gain on foreign currency transactions for the year ended December 31, 2006, compared to a $462,000 loss on foreign currency transactions for the year ended December 31, 2005 due to the changes in exchange rates between the U.S. dollar and the Euro and the Australian and New Zealand dollar. We have not engaged in hedging transactions to offset foreign currency fluctuations.
(Loss) Gain on Sale of Marketable Securities.  Certain of our investments consisted of U.S. government securities and were classified as available-for-sale. The securities were held to maturity and matured on December 31, 2006. We realized a $45,000 loss on sale of marketable securities for the year ended December 31, 2005. There were no gains or losses in 2006.
Interest Income.  Interest income results from interest earned on our cash and investments balances. Interest income for the year ended December 31, 2006 was $448,000 as compared with $594,000 for the year ended December 31, 2005.
Interest Expense.  Interest expense consists primarily of interest on outstanding balances on our line of credit, standby fees under the line of credit, and the periodic use of the line during the year. Interest expense for the year ended December 31, 2006 was $388,000 as compared to $348,000 for the year ended December 31, 2005.
Income Taxes.  An income tax provision of $162,000 was recognized for the year ended December 31, 2006 as compared with $269,000 for the year ended December 31, 2005. Based upon our operating losses and the weight of the available evidence, management believes it is more likely than not that we will not realize


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all of these deferred tax assets. As of December 31, 2006, we had net operating loss carryforwards for federal and state purposes of approximately $57.7 million and $22.0 million, respectively, which began expiring in 2007. As of December 31, 2006, we had research and development credit carryforwards for federal and state purposes of approximately $678,000 and $314,000, respectively, which will begin expiring in 2011 for federal purposes and carryforward indefinitely for state purposes. The utilization of net operating loss and credit carryforwards may be limited under the provisions of Internal Revenue Code Section 382 and similar state provisions.
Liquidity and Capital Resources
 
We believe we currently possess sufficient resources to meet the cash requirements of our operations for at least the next year. Our basis for this is the following.
• Beginning in the fourth quarter of 2008, we implemented substantial cost reduction measures including the reduction of employment and expenses throughout all functional areas of our business. We have reduced our headcount from approximately 234 at September 30, 2008 to approximately 146 as of February 28, 2009.
• On February 27, 2009, we entered into a letter agreement, or Agreement, with HSIC amending the term of the License and Distribution Agreement through March 31, 2010. Included in this Agreement are minimum purchase requirements of approximately $42.7 million over the initial fourteen-month term starting in February 2009. Additionally, the Agreement contains guaranteed bi-monthly minimum purchases of our lasers and associated equipment. The Agreement can be extended for two additional optional twelve month terms and the agreement which require escalation minimums of between 7.5 percent and 20 percent over actual or minimum sales, whichever is greater.
• During the first quarter of 2009, we made the decision to begin the transition of sales in countries served by our foreign subsidiaries located in Germany, Spain, Australia and New Zealand from direct to distributor. As part of the Agreement with HSIC, HSIC will become our distributor in each of these countries as well as in the future in additional foreign countries. As a result of these developments, we


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have begun the process of shutting down the foreign subsidiaries which have been recording significant losses ever since being established to sell direct in those countries in 2006.
• We are in the process of reviewing our inventory levels and plan to reduce the levels to more historical year end amounts of approximately $7 million. Our new Agreement with HSIC will allow us to better forecast our inventory needs and not having inventory located at our foreign subsidiaries will help in this objective.
Although we believe that we will have sufficient resources to meet our obligations and sustain our operations during the next twelve months, there can be no assurance that the resources we believe will be available will prove to be available or sufficient, or that additional resources will be available if necessary to fund our operations. We are substantially dependent on our major distributor and the continued performance of this distributor to make committed purchases of our products and associated consumables under our distribution agreement, and the receipt of cash in connection with those purchases, is essential to our liquidity. In addition, we presently do not have any debt financing in place with a bank or other financial institution. The absence of such debt financing availability could adversely impact our operations. Our obligations and operating requirements may require us to seek additional funding through public or private equity or debt financing, and we have no commitments for financing of any kind at this time. There can be no assurance that we will be able to obtain requisite financing if necessary to fund existing obligations and operating requirements on acceptable terms or at all.
At December 31, 2007,2008, we had approximately $11.0$5.0 million in net working capital, a decrease of $6.3$6.0 million from $17.3$11.0 million at December 31, 2006.2007. Our principal sources of liquidity at December 31, 20072008 consisted of our cash and cash equivalents balance of $14.6$11.2 million and a $10.0 million revolving bank line of credit with Comerica Bank (the “Lender”) of which $3.6$5.4 million was utilized as of December 31, 20072008 at an interest rate of 7.5%3.5% (based on prime rate plus 0.25% as of that date). This balance was subsequently paid
On September 28, 2006, we entered into a Loan and Security Agreement (“Loan Agreement”) with Comerica Bank (the “Lender”) which replaced the loan agreement previously held with Bank of the West (“BOW”). Under the Loan Agreement, the Lender agreed to extend a revolving loan (the “Revolving Line”) to us in full on January 2, 2008.the maximum principal amount of $10.0 million. Advances under the revolving bank line of credit mayRevolving Line could not exceed the lesser of $10.0 million or the Borrowing Base (80% of eligible accounts receivable and 35% of eligible inventory), less any amounts outstanding under letters of credit or foreign exchange contract reserves. Notwithstanding the foregoing, advances of up to $6.0 million maycould be made without regard to the Borrowing Base. On October 5, 2007, we entered into an Amendment to the Loan Agreement which extendsextended the agreement for an additional year. The entire unpaid principal amount plus any accrued but unpaid interest and all other amounts due under the Loan Agreement arewould have been due and payable in full on September 28, 2009 (the “Maturity Date”), but can becould have been extended by us for an additional year upon Lender approval. Our obligations under the line bearLoan Agreement beared interest on the outstanding daily balance thereof at our choiceone of either:the following rates, to be selected by us: (i) LIBOR plus 2.50%, or (ii) prime rate, as announced by the Lender, plus 0.25%. As security for the payment and performance of our obligations under the Loan Agreement, we granted the Lender a first priority security interest in certain collateral,existing and later-acquired Collateral (as defined in the Loan Agreement, and which excludes intellectual property.property). Certain subsidiaries of ours had entered into unconditional guaranties, dated as of September 28, 2006, pursuant to which such subsidiaries had guaranteed the payment and performance of our obligations under the Loan Agreement.
 
The line of credit requiresLoan Agreement required compliance with certain financial covenants, including: (i) minimum effective tangible net worth; (ii) maximum leverage ratio; (iii) minimum cash amount at the Lender of $6.0 million; and (iv) minimum liquidity ratio. The lineLoan Agreement also containscontained covenants that require therequired Lender’s prior written consent for us, among other things, to: (i) transfer any part of ourits business or property; (ii) make any changes in our location or name, or replace our CEO or CFO; (iii) consummate mergers or acquisitions; (iv) incur liens; or, (v) pay dividends or repurchase stock. The line containsLoan Agreement contained customary events of default, any one of which willwould result in the right of the Lender to, among other things, accelerate all obligations under the line,Loan Agreement, set-off obligations under the lineLoan Agreement against any of our balances or deposits of ours held by the Lender,bank, or sell the collateral. We have obtainedCollateral.


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On January 30, 2009, we delivered a compliance certificate to Comerica which set forth non-compliance with certain covenants under the Lender’s consent for the termination of our former CEO in November 2007, the resignation of our former CFO in January 2008, the appointment of our successor CEO in January 2008 and the appointment of our interim CFO in February 2008 and were in compliance with all other covenantsLoan Agreement as of December 31, 2007.2008. The loan agreement was terminated on February 5, 2009 and all outstanding balances were repaid in full with cash available on hand, and under the terms of the Loan Agreement and related note, we and certain of our subsidiaries satisfied all of our obligations under the Loan Agreement.
We are currently pursuing other credit facilities that do not contain the cash deposit requirements set forth in the Comerica Loan Agreement; however, we cannot guarantee that we will be able to obtain such a line, or otherwise obtain additional financing to support our working capital needs.
 
For the year ended December 31, 2007,2008, our operating activities used cash of approximately $3.3$4.5 million, compared to cash providedused by operations of $425,000$3.3 million for 2006.2007. Cash flows from operating activities in 2007 were negatively impacted by the higher net loss in 20072008 compared to 20062007 as explained under “Results of Operations”. Operating cash flows in 2006 also benefited from the cash infusion from the Procter & Gamble and HSIC transactions. We received a one-time payment from The Procter & Gamble Company, or P&G, of $3.0 million for a license to certain of our patents pursuant to a binding letter agreement, subsequently replaced by a definitive agreement effective January 24, 2007, and a separate one-time payment from HSIC of $5.0 million. Both amounts were initially recorded as deferred revenue when received. In the event of a material uncured breach of the P&G definitive agreement by us, we could be required to refund certain payments made to us under the agreement, including the $3.0 million payment. We cannot assure you that we will not have to return all or a portion of the $3.0 million payment to P&G.
The most significant change in operating assets and liabilities for the year ended December 31, 20072008 as reported in our Consolidated Statements of Cash Flow was a decrease in accounts receivable of $4.4$7.5 million (before the change in allowance for doubtful accounts). The benefit from the reduction in accounts receivable


49


was partially offset by a $779,000 increase in prepaid expenses and other current assets, a $1.8 million decrease in deferred revenue and a $1.1 million decrease in accounts payable and accrued liabilities. Net changes in operating assets and liabilities for 2006 were $137,000 primarily comprised of an increase in accounts receivable of $7.7 million largely offset by an increase of $4.9 million in deferred revenueinventory. The change in accounts receivable was a result of $7.5 million.decreased revenues in the fourth quarter of 2008 compared to the fourth quarter of 2007. Also, we received accelerated payments from HSIC on invoices during the fourth quarter of 2008. The increase in inventory was primarily a result of lower than expected sales during the fourth quarter 2008.
 
In December 2007,2008, we financed $1.1 millionapproximately $804,000 of insurance premiums payable in eleven equal monthly installments of approximately $107,000$75,000 each, including a finance charge of 5.39%5.65%. On January 10, 2006, we entered into a five-year facility lease with initial monthly installments of $39,000 and annual adjustments over the lease term. These amounts are included in the outstanding obligations as of December 31, 20072008 listed below.
 
The following table presents our expected cash requirements for contractual obligations outstanding as of December 31, 20072008 for the years ending as indicated below (in thousands):
 
                                        
 Less Than
 1 to 3
 3 to 5
 More Than
    Less Than
 1 to 3
 3 to 5
 More Than
   
 1 Year Years Years 5 Years Total  1 Year Years Years 5 years Total 
Operating leases $582  $1,151  $200  $  $1,933  $519  $782  $  $  $1,301 
SurgiLight agreement  25   50          75   25   25         50 
Insurance premium financing  1,045            1,045   732            732 
                      
Total $1,652  $1,201  $200  $  $3,053  $1,276  $807  $  $  $2,083 
                      
 
Effective November 5, 2007, we terminated the employment of Jeffrey W. Jones,In January 2008, Jake St.  Philip was appointed our President and Chief Executive Officer. On January 30, 2008,March 5, 2009, Mr. St. Philip resigned as our Chief Executive Officer and as a director of our Board of Directors. On March 10, 2009, we entered into a Separation and General Release Agreement, or Agreement, with Mr. Jones relatingSt. Philip. Pursuant to the terminationAgreement, we agreed to pay Mr. St. Philip a severance payment of $350,000 of which half will be paid on May 9, 2009 and half will be paid in twelve consecutive equal monthly installments commencing on June 1, 2009. In addition, we agreed to pay COBRA premiums on his employment.behalf for twelve months. The agreementAgreement superseded the Employment Agreement we had with Mr. JonesSt. Philip dated December 29, 2005. Pursuant to the terms of the agreement, we agreed to pay Mr. Jones a severance amount of $374,822 and pay COBRA premiums on his behalf of $1,712 per month for the period from December 2007 through February 2008. The severance amount was subsequently paid on FebruaryJanuary 2, 2008.
 
Following the termination of Mr. Jones,On April 30, 2008, we appointed Federico Pignatelli, one of our current directors and Chairman Emeritus,David M. Mulder as Interim President and Chief ExecutiveFinancial Officer. Mr. Pignatelli subsequently resigned his position as Interim Chief Executive Officer in January 2008 following the appointment of Jake St. Philip as our Chief Executive Officer. Mr. Pignatelli will remain our President in 2008 for which he will receive a salary of $150,000.
Effective November 5, 2007, we terminated the employment of Keith G. Bateman, our Executive Vice President, Global Sales and Marketing. On January 22, 2008, we entered into a Separation and General Release Agreement with Mr. Bateman relating to the termination of his employment. Pursuant to the terms of the agreement, we agreed to pay Mr. Bateman a severance amount of $187,263 and pay COBRA premiums on his behalf of $1,311 per month for the period from December 2007 through May 2008. The severance amount was subsequently paid on January 31, 2008.
Mr. St. PhilipMulder has an employment agreement that obligatesobligate us to pay him severance benefits under certain conditions, including termination without cause and resignation with good reason. In the event Mr. St. PhilipMulder is terminated by us without cause or he resigns with good reason, the total severance benefits payable would be approximately $600,000$255,000 based on compensation in effect as of January 2,April 30, 2008, the date Mr. St. PhilipMulder was appointed as our current CEO. Chief Financial Officer. On March 5, 2009, Mr. Mulder was appointed Chief Executive Officer and appointed to our Board of Directors.
In addition to Mr. St. Philip,Mulder, certain other members of management are entitled to severance benefits payable upon termination following a change in control, which would approximate $2.2$2.6 million. Also, we have agreements with certain employees to pay bonuses based on targeted performance criteria.


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In addition to the amounts shown in the table above, $163,000$108,000 of unrecognized tax benefits have been recorded as liabilities in accordance with FASB Interpretation No. 48,Accounting for Uncertainty in Income Taxes, An Interpretation of FASB Statement No. 109(“FIN 48”), and we are uncertain as to if or when such amounts may be settled. Related to these unrecognized tax benefits, we have also recorded a liability for potential penalties and interest of $18,000$20,000 and $14,000,$19,000, respectively, at December 31, 2007.2008.


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We believe we currently possess sufficient resources, including amounts available under our revolving bank line of credit, to meet the cash requirements of our operations for at least the next year. Our capital requirements will depend on many factors, including, among other things, the effects of any acquisitions we may pursue as well as the rate at which our business grows, with corresponding demands for working capital and manufacturing capacity. We could be required or may elect to seek additional funding through public or private equity or debt financing. However, the extendeda credit facility, or additional funds through public or private equity or other debt financing, may not be available on terms acceptable to us or at all.
 
Selected Quarterly Financial Data
 
The following table presents our operating results for each quarter in our last two fiscal years. This data has been derived from unaudited financial statements that, in the opinion of our management, include all adjustments, consisting of normal recurring adjustments, necessary for a fair presentation of such information when read in conjunction with our annual audited financial statements and notes thereto. These operating results are not necessarily indicative of results for any future operating period.
 
                                
 March 31, June 30, September 30, December 31,(4)  March 31, June 30, September 30, December 31, 
 (In thousands, except per share data)  (In thousands, except per share data) 
2007
                
2008
                
Net revenue $15,060  $18,177  $12,812  $20,840  $19,041  $18,663  $15,286  $11,635 
Gross profit  8,137   10,010   6,584   9,794   9,582   10,107   7,531   5,442 
Loss from operations(1)  (1,843)  (923)  (3,589)  (2,615)
Net loss(1)  (1,723)  (901)  (3,508)  (1,148)
Net loss per share(3):                
Profit (loss) from operations(1)  (561)  386   (3,794)  (4,814)
Net income (loss)(1)  26   622   (4,490)  (5,287)
Net income (loss) per share(3):                
Basic  (0.07)  (0.04)  (0.15)  (0.05)  0.00   0.03   (0.19)  (0.22)
Diluted  (0.07)  (0.04)  (0.15)  (0.05)  0.00   0.03   (0.19)  (0.22)
 
                                
 March 31, June 30, September 30, December 31,  March 31, June 30, September 30, December 31,(4) 
 (In thousands, except per share data)  (In thousands, except per share data) 
2006
                
2007
                
Net revenue $16,880  $15,907  $17,066  $19,847  $15,060  $18,177  $12,812  $20,840 
Gross profit  8,764   7,557   8,618   11,550   8,137   10,010   6,584   9,794 
(Loss) income from operations(2)  (2,219)  (2,438)  (1,134)  953 
Net (loss) income(2)  (2,284)  (2,436)  (1,007)  1,038 
Net (loss) income per share(3):                
Loss from operations(2)  (1,843)  (923)  (3,589)  (2,615)
Net loss(2)  (1,723)  (901)  (3,508)  (1,148)
Net loss per share(3):                
Basic  (0.10)  (0.10)  (0.04)  0.04   (0.07)  (0.04)  (0.15)  (0.05)
Diluted  (0.10)  (0.10)  (0.04)  0.04   (0.07)  (0.04)  (0.15)  (0.05)
 
 
(1)Loss from operations and net loss includes $452,000, $440,000, $424,000 and $419,000 in compensation cost related to stock options for the quarters ended March 31, June 30, September 30 and December 31, 2008, respectively.
(2)Loss from operations and net loss includes $361,000, $329,000, $262,000 and $313,000 in compensation cost related to stock options for the quarters ended March 31, June 30, September 30 and December 31, 2007, respectively.
(2)(Loss) income from operations and net (loss) income includes $199,000, $331,000, $363,000 and $604,000 in compensation cost related to stock options for the quarters ended March 31, June 30, September 30 and December 31, 2006, respectively.
 
(3)Net (loss) income per share calculations for each of the quarters were based upon the weighted average number of shares outstanding for each period, and the sum of the quarters may not necessarily be equal to the full year net (loss) income per common share amount.


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(4)In the fourth quarter of fiscal 2007, we recorded certain amounts to “Gain (loss) on foreign currency transactions” relating to prior 2007 quarters resulting in a reduction of our net loss by $1.0 million (or $0.04 per share) for the quarter and year ended December 31, 2007. The adjustments resulted from the misapplication of Statement of Financial Accounting Standard No. 52,Foreign Currency Translation, to certain


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foreign-currency transactions between BIOLASE Technology, Inc. and certain of our foreign subsidiaries. We concluded that the amounts were not material to previously-reported interim periods.
 
We have at various times experienced fluctuations in quarterly net revenue due to seasonality. Many medical device companies such as ours experience weakness in the calendar third quarter as medical providers, practitioners and patients often postpone elective procedures during the summer months. This weakness is frequently offset by greater revenues in the calendar fourth quarter. We expect to continue to experience seasonal fluctuations in our revenues. Since many of our costs are fixed in the short term, if we have a shortfall in revenue resulting from a change in our historical seasonality pattern, or otherwise, we may be unable to reduce expenses quickly enough to avoid losses.
 
Recent Accounting Pronouncements
 
See Note 2 of the Notes to the Consolidated Financial Statements included in this report for a discussion on recent accounting pronouncements.
 
Item 7A.  Quantitative and Qualitative Disclosures About Market Risk
 
We generate a substantial portion of our net revenue from the sale of products outside the United States. Our sales from our international subsidiaries are denominated in their local currencies, and our sales in other international markets are denominated in U.S. dollars. As we do not engage in hedging transactions to offset foreign currency fluctuations, we are at risk for changes in the value of the dollar relative to the value of the foreign currency. An increase in the relative value of the dollar would lead to less income from sales denominated in foreign currencies unless we increase prices, which may not be possible due to competitive conditions in the respective foreign territories. Conversely, a decrease in the relative value of the dollar would lead to more income from sales denominated in foreign currencies. Additionally, we are obligated to pay expenses relating to international subsidiaries in their respective local currencies. Thus, we are also at risk for changes in the value of the dollar relative to the foreign currency with respect to our obligation to pay expenses relating to our international subsidiaries’ operations. An increase in the value of the dollar relative to the foreign currencies would reduce the expenses associated with the operations of our international subsidiaries’ facilities, whereas a decrease in the relative value of the dollar would increase the cost associated with the operations of our international subsidiaries’ facilities.
 
We currently haveThrough February 5, 2009, we had a line of credit which bearsbeared interest at rates based on the Prime rate or LIBOR. At December 31, 2007, $3.62008, $5.4 million was outstanding under the line of credit at a rate of 7.5%, which3.5%. The line of credit was subsequentlyterminated on February 5, 2009 and the balance was repaid in full on January 2, 2008. A change in the Prime rate or LIBOR would have an effect of an increase or decrease in interest expense on any balances outstanding.full.
 
Our primary objective in managing our cash balances has been preservation of principal and maintenance of liquidity to meet our operating needs. Most of our excess cash balances are invested in money market accounts in which there is minimal interest rate risk.
 
Item 8.  Financial Statements and Supplementary Data
 
All financial statements and supplementary data required by this Item are listed in Part IV, Item 15 of thisForm 10-K, are presented beginning onPage F-1 and are incorporated herein by this reference. Selected Quarterly Financial Data are presented in Item 7 (Management’s Discussion and Analysis of Financial Condition and Results of Operations) of thisForm 10-K and are incorporated herein by this reference.
 
Item 9.  Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
 
On August 3, 2005, we dismissed PricewaterhouseCoopers LLP (“PWC”) as our independent registered public accounting firm. Our Audit Committee approved the decision to dismiss its independent registered public accounting firm.
On August 8, 2005, we engaged BDO Seidman, LLP, or BDO, as our new independent registered public accounting firm. Prior to and since the engagement of BDO, we have not consulted with BDO with respect toNone.


5251


the application of accounting principles to a specified transaction, either completed or proposed, or the type of audit opinion that might be rendered on our financial statements, or any other matters or reportable events listed in Item 304(a)(2)(i) or (ii) ofRegulation S-K.
Item 9A.  Controls and Procedures
 
Disclosure Controls and Procedures
 
Our management, with the participation of our chief executive officer and interim chief financial officer, evaluated the effectiveness of our disclosure controls and procedures (as defined inRules 13a-15(e) and15d-15(e) under the Exchange Act) as of December 31, 2007.2008. Based on this evaluation, our chief executive officer and interim chief financial officer concluded that our disclosure controls and procedures were not effective becauseas of the material weakness described below.December 31, 2008.
 
Management’s Report on Internal Control over Financial Reporting
 
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined inRules 13a-15(f) and15d-15(f) under the Securities Exchange Act of 1934. A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of our assets; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that our receipts and expenditures are being made only in accordance with authorizations of our management and directors; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of our assets that could have a material effect on our financial statements.
 
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
 
Under the supervision and with the participation of management, including our chief executive officer and interim chief financial officer, management conducted an assessment of the effectiveness of our internal control over financial reporting based on the framework established by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) entitled “Internal Control — Integrated Framework.”
A material weakness is a control deficiency, or combination of control deficiencies, that results in more than a remote likelihood that a material misstatement of the annual or interim financial statements will not be prevented or detected. Management has identified the following material weakness:
As of December 31, 2007, in accordance with FAS 52 —Foreign Currency Translation, we did not maintain effective controls over the recording of realized and unrealized foreign currency transaction gains or losses resulting from the fluctuation in exchange rates Based on transactions between BIOLASE and its subsidiaries. As a result of our analysis of the treatment of these intercompany balances in the fourth quarter of 2007, we identified that our treatment of recording foreign currency transaction gains or losses to other comprehensive gain was inconsistent with our intent to treat these balances as short term investments. Therefore, weevaluation under COSO Framework, management concluded that our controls over the proper recording of transaction gains or losses to the consolidated statement of operations were not effective. This control deficiency resulted in an adjustment to our consolidated financial statements at December 31, 2007.
Because of this material weakness, management has concluded that we did not maintain effective internal control over financial reporting was effective at a reasonable assurance level as of December 31, 2007, based on the criteria inInternal Control — Integrated Framework.2008.


53


BDO Seidman, LLP, our independent registered public accounting firm that audited the consolidated financial statements included in this Annual Report onForm 10-K, issued an attestation report on our internal control over financial reporting as of December 31, 2007;2008; their report is included herein.
 
Plan for Remediation of Material Weaknesses
Management has reviewed with the Audit Committee of the Board of Directors the internal control deficiencies related to the recording of realized and unrealized foreign currency transaction gains or losses resulting from the change in translation rates between the Company and its subsidiaries that aggregated into a material weakness in our internal control over financial reporting as of December 31, 2007.
Management has adopted, with the Audit Committee’s concurrence, remedial measures designed to improve our control environment and to address the material weakness described in Management’s Report on Internal Control over Financial Reporting. These remedial measures primarily include the quarterly settlement of outstanding intercompany balances and recognition of realized transaction gains or losses to the consolidated statement of operations.
These remedial measures were implemented in the first quarter of 2008.
Changes in Internal Control over Financial Reporting
 
In ourForm 10-K for the fiscal year ended December 31, 2007, we have disclosed that we had a material weakness as described in Item 9A - Management’s Report on Internal Control Over Financial Reporting. However, our remedial efforts relating to the material weakness reported in our December 31, 2007 Annual Report included, but was not limited to, the quarterly settlement of our intercompany balances and recognition of realized transaction gains or losses to the consolidated statement of operations. These remedial measures were implemented in the first quarter of 2008.


5452


Report of Independent Registered Public Accounting Firm
 
The Board of Directors and Shareholders
BIOLASE Technology, Inc.
Irvine, California
 
We have audited BIOLASE Technology, Inc.’sInc’s (the “Company”) internal control over financial reporting as of December 31, 2007,2008, based on criteria established inInternal Control — Integrated Frameworkissued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO criteria). The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Item 9A, Management’s Report on Internal Control Over Financial Reporting. Our responsibility is to express an opinion on the Company’scompany’s internal control over financial reporting based on our audit.
 
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
 
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
 
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
 
A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the company’s annual or interim financial statements will not be prevented or detected in a timely basis. The following material weakness was identified and included in management’s assessment as of December 31, 2007:
As of December 31, 2007, in accordance with FAS 52 —Foreign Currency Translation, the Company did not maintain effective controls over the recording of realized and unrealized foreign currency transaction gains and losses resulting from the fluctuation of exchange rates on transactions between the Company and its subsidiaries. As a result of the Company’s analysis of the treatment of these intercompany balances in the fourth quarter of 2007, the Company identified that their treatment of recording foreign currency transaction gains or losses to other comprehensive income was inconsistent with their intent to treat these balances as short term investments. Therefore, they concluded that the Company’s controls over the proper recording of foreign currency transaction gains or losses to the statement of operations were not effective.


55


This material weakness was considered in determining the nature, timing, and extent of audit tests applied in our audit of the 2007 consolidated financial statements, and this report does not affect our report dated March 14, 2008.
In our opinion, BiolaseBIOLASE Technology, Inc. did not maintain,maintained, in all material respects, effective internal control over financial reporting as of December 31, 2007,2008, based on the COSO criteria.
We do not express an opinion or any other form of assurance on management’s statements referring to any corrective action taken by the Company after the date of management’s assessment.
 
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of BIOLASE Technology, Inc. as of December 31, 20072008 and 2006,2007, and the related consolidated statements of operations, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2007,2008 and our report dated March 14, 200816, 2009 expressed an unqualified opinion thereon.
 
/s/ BDO Seidman, LLP
Costa Mesa, California
March 14, 200816, 2009


5653


Item 9B.Other Information
None
 
PART III
 
Item 10.  Directors and Executive Officers of the Registrant
 
There is hereby incorporated herein by reference the information appearing under the captionElection of Directorsin the proxy statement for our 20082009 Annual Meeting of Stockholders to be filed with the Securities and Exchange Commission on or before April 10, 2008.15, 2009.
 
Item 11.  Executive Compensation
 
There is hereby incorporated herein by reference the information appearing under the captionExecutive Compensationin the proxy statement for our 20082009 Annual Meeting of Stockholders to be filed with the Securities and Exchange Commission on or before April 10, 2008.15, 2009.
 
Item 12.  Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
 
There is hereby incorporated herein by reference the information appearing under the captionSecurity Ownership of Certain Beneficial Owners and Managementin the proxy statement for our 20082009 Annual Meeting of Stockholders to be filed with the Securities and Exchange Commission on or before April 10, 2008.15, 2009.
 
There is hereby incorporated herein by reference the information appearing under the captionEquity Compensation Plan Informationin the proxy statement for our 20082009 Annual Meeting of Stockholders to be filed with the Securities and Exchange Commission on or before April 10, 2008.15, 2009.
 
Item 13.  Certain Relationships and Related Transactions, and Director Independence
 
There is hereby incorporated herein by reference the information appearing under the captionCertain Relationships and Related Transactionsin the proxy statement for our 20082009 Annual Meeting of Stockholders to be filed with the Securities and Exchange Commission on or before April 10, 2008.15, 2009.
 
Item 14.  Principal Accountant Fees and Services
 
There is hereby incorporated herein by reference the information appearing under the captionIndependent Auditor Fee Informationin the proxy statement for our 20082009 Annual Meeting of Stockholders to be filed with the Securities and Exchange Commission on or before April 10, 2008.15, 2009.


5754


 
PART IV
 
Item 15.  Exhibits and Financial Statement Schedules
 
(a) The following documents are filed as part of this Annual Report onForm 10-K beginning on the pages referenced below:
 
(1)  Financial Statements:
 
     
  Page
 
  F-2 
  F-3 
  F-4 
  F-5 
  F-6 
  F-7 
(2)  
Financial Statement Schedule:
    
  S-1 
 
All other schedules have been omitted as they are not applicable, not required or the information is included in the consolidated financial statements or the notes thereto.
 
(3)  Exhibits:
 
The following exhibits are filed with this Annual Report onForm 10-K or are incorporated by reference herein in accordance with the designated footnote references.
 
        
Exhibit
Exhibit
  Exhibit
  
Number
Number
 
Description
Number
 
Description
3.1 Restated Certificate of Incorporation, as amended. (Filed with Registrants’ Amendment No. 1 to Registration Statement on Form S-1 filed December 23, 2005 and incorporated herein by reference.)3.1 Restated Certificate of Incorporation, as amended. (Filed with Registrants’ Amendment No. 1 to Registration Statement onForm S-1 filed December 23, 2005 and incorporated herein by reference.)
3.2 Amended and Restated Bylaws. (Filed May 18, 2007 with Registrant’s Current Report on Form 8-K and incorporated herein by reference).3.2 Fourth Amended and Restated Bylaws. (Filed with Registrant’s Current Report onForm 8-K filed on December 22, 2008 and incorporated herein by reference)
4.1 Certificate of Designations, Preferences and Rights of 6% Redeemable Cumulative Convertible Preferred Stock of Biolase Technology, Inc. (included in Exhibit 3.1.)4.1 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.)4.2 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.)4.3 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.)4.4 Certificate of Designations of Series B Junior Participating Cumulative Preferred Stock of Biolase Technology, Inc. (included in Exhibit 3.1.)
4.5 Rights Agreement dated as of December 31, 1998, between the Registrant and U.S. Stock Transfer Corporation. (Filed with Registrant’s Registration Statement on Form 8-A filed December 29, 1998 and incorporated herein by reference.)4.5 Rights Agreement dated as of December 31, 1998, between the Registrant and U.S. Stock Transfer Corporation. (Filed with Registrant’s Registration Statement onForm 8-A filed December 29, 1998 and incorporated herein by reference.)
4.6 Specimen of common stock certificate. (Filed with Registrant’s Registration Statement on Form S-3 filed June 3, 2002 and incorporated herein by reference.)4.6 Amendment to Rights Agreement, dated December 19, 2008, between Biolase Technology, Inc. and Computershare Trust Company, N.A. (Filed with the Registrant’s Current Report onForm 8-K filed on December 22, 2008 and incorporated herein by reference)
4.7 Warrant to Purchase 81,037 shares of Common Stock of Biolase Technology, Inc. issued to Diodem, LLC dated January 24, 2005. (Filed with Registrant’s Quarterly Report on Form 10-Q filed September 30, 2005 and incorporated herein by reference.)4.7 Specimen of common stock certificate. (Filed with Registrant’s Registration Statement onForm S-3 filed June 3, 2002 and incorporated herein by reference.)


5855


        
Exhibit
Exhibit
  Exhibit
  
Number
Number
 
Description
Number
 
Description
4.8 Registration Rights Agreement between Biolase Technology, Inc. and Diodem, LLC dated January 24, 2005. (Filed with Registrant’s Quarterly Report on Form 10-Q filed September 30, 2005 and incorporated herein by reference.)4.8 Warrant to Purchase 81,037 shares of Common Stock of Biolase Technology, Inc. issued to Diodem, LLC dated January 24, 2005. (Filed with Registrant’s Quarterly Report onForm 10-Q filed September 30, 2005 and incorporated herein by reference.)
4.9 Form of Warrant to Purchase Common Stock of Registrant issued to assignees of Diodem, LLC dated August 15, 2005. (Filed with Registrant’s Quarterly Report on Form 10-Q filed November 9, 2005 and incorporated herein by reference.)4.9 Registration Rights Agreement between Biolase Technology, Inc. and Diodem, LLC dated January 24, 2005. (Filed with Registrant’s Quarterly Report onForm 10-Q filed September 30, 2005 and incorporated herein by reference.)
10.1 Form of Purchase Order Term and Conditions relating to domestic sales (effective for sales after August 4, 2003). (Filed with Amendment No. 2 to Registrant’s Annual Report on Form 10-K/A filed December 16, 2003 and incorporated herein by reference.)4.10 Form of Warrant to Purchase Common Stock of Registrant issued to assignees of Diodem, LLC dated August 15, 2005. (Filed with Registrant’s Quarterly Report onForm 10-Q filed November 9, 2005 and incorporated herein by reference.)
10.2 BIOLASE and NTL Agreement dated August 5, 2003, between National Technology Leasing Corporation and the Registrant. (Filed with Amendment No. 2 to Registrant’s Annual Report on Form 10-K/A filed December 16, 2003 and incorporated herein by reference.)10.1 Form of Purchase Order Term and Conditions relating to domestic sales (effective for sales after August 4, 2003). (Filed with Amendment No. 2 to Registrant’s Annual Report onForm 10-K/A filed December 16, 2003 and incorporated herein by reference.)
10.3 Form of Purchase Order Terms and Conditions from National Technology Leasing Corporation. (Filed with Amendment No. 2 to Registrant’s Annual Report on Form 10-K/A filed December 16, 2003 and incorporated herein by reference.)10.2 BIOLASE and NTL Agreement dated August 5, 2003, between National Technology Leasing Corporation and the Registrant. (Filed with Amendment No. 2 to Registrant’s Annual Report onForm 10-K/A filed December 16, 2003 and incorporated herein by reference.)
10.4* 1990 Stock Option Plan. (Filed with Registrant’s Registration Statement on Form S-1 filed October 9, 1992 and incorporated herein by reference.)10.3 Form of Purchase Order Terms and Conditions from National Technology Leasing Corporation. (Filed with Amendment No. 2 to Registrant’s Annual Report onForm 10-K/A filed December 16, 2003 and incorporated herein by reference.)
10.5* Form of Stock Option Agreement under the 1990 Stock Option Plan. (Filed with Registrant’s Annual Report on Form 10-K filed July 19, 2005 and incorporated herein by reference.)10.4* 1990 Stock Option Plan. (Filed with Registrant’s Registration Statement onForm S-1 filed October 9, 1992 and incorporated herein by reference.)
10.6* 1993 Stock Option Plan. (Filed with Registrant’s Annual Report on Form 10-K filed April 14, 1994 and incorporated herein by reference.)10.5* Form of Stock Option Agreement under the 1990 Stock Option Plan. (Filed with Registrant’s Annual Report onForm 10-K filed July 19, 2005 and incorporated herein by reference.)
10.7* Form of Stock Option Agreement under the 1993 Stock Option Plan. (Filed with Registrant’s Annual Report on Form 10-K filed April 14, 1994 and incorporated herein by reference.)10.6* 1993 Stock Option Plan. (Filed with Registrant’s Annual Report onForm 10-K filed April 14, 1994 and incorporated herein by reference.)
10.8* 2002 Stock Incentive Plan. (Filed with Registrant’s definitive Proxy Statement filed October 17, 2005 and incorporated herein by reference.)10.7* Form of Stock Option Agreement under the 1993 Stock Option Plan. (Filed with Registrant’s Annual Report onForm 10-K filed April 14, 1994 and incorporated herein by reference.)
10.9* Form of Stock Option Agreement under the 2002 Stock Option Plan. (Filed with Registrant’s Annual Report on Form 10-K filed July 19, 2005 and incorporated herein by reference.)10.8* 2002 Stock Incentive Plan. (Filed with Registrant’s definitive Proxy Statement filed October 17, 2005 and incorporated herein by reference.)
10.10 2002 Stock Incentive Plan (Filed with Registrant’s definitive Proxy Statement filed April 10, 2007 and incorporated herein by reference.)10.9* Form of Stock Option Agreement under the 2002 Stock Option Plan. (Filed with Registrant’s Annual Report onForm 10-K filed July 19, 2005 and incorporated herein by reference.)
10.11† Definitive Asset Purchase Agreement dated January 24, 2005 by and among Diodem, LLC, BL Acquisition II, Inc. and Biolase Technology, Inc. (Filed January 28, 2005 with Registrant’s Current Report on Form 8-K and incorporated herein by reference).10.10 2002 Stock Incentive Plan (Filed with Registrant’s definitive Proxy Statement filed April 10, 2007 and incorporated herein by reference.)
10.12† License Agreement between SurgiLight, Inc. and Biolase Technology, Inc. dated February 3, 2005 (Filed March 18, 2005 with Registrant’s Current Report on Form 8-K and incorporated herein by reference).10.11† Definitive Asset Purchase Agreement dated January 24, 2005 by and among Diodem, LLC, BL Acquisition II, Inc. and Biolase Technology, Inc. (Filed January 28, 2005 with Registrant’s Current Report onForm 8-K and incorporated herein by reference).
10.13* Form of Indemnification Agreement between Registrant and its officers and directors. (Filed with Registrant’s Quarterly Report on Form 10-Q filed November 9, 2005 and incorporated herein by reference.)10.12† License Agreement between SurgiLight, Inc. and Biolase Technology, Inc. dated February 3, 2005 (Filed March 18, 2005 with Registrant’s Current Report onForm 8-K and incorporated herein by reference).
10.14* Form of Resale Restriction Agreement dated December 16, 2005 between Registrant and certain key employees and officers. (Filed December 22, 2005 with Registrant’s Current Report of Form 8-K and incorporated herein by reference.)10.13* Form of Indemnification Agreement between Registrant and its officers and directors. (Filed with Registrant’s Quarterly Report onForm 10-Q filed November 9, 2005 and incorporated herein by reference.)
10.15* Resale Restriction Agreement dated as of December 29, 2005 between Registrant and Jeffrey W. Jones. (Filed January 10, 2006 with Registrant’s Current Report of Form 8-K and incorporated herein by reference.)10.14* Form of Resale Restriction Agreement dated December 16, 2005 between Registrant and certain key employees and officers. (Filed December 22, 2005 with Registrant’s Current Report ofForm 8-K and incorporated herein by reference.)
10.16 Lease dated January 10, 2006 between Registrant and The Irvine Company LLC. (Filed January 17, 2006 with Registrant’s Current Report of Form 8-K and incorporated herein by reference.)10.15* Resale Restriction Agreement dated as of December 29, 2005 between Registrant and Jeffrey W. Jones. (Filed January 10, 2006 with Registrant’s Current Report ofForm 8-K and incorporated herein by reference.)
10.17† Letter Agreement, dated June 28, 2006, by and between The Procter & Gamble Company and Biolase Technology, Inc. (Filed with Registrant’s Quarterly Report on Form 10-Q filed August 9, 2006 and incorporated herein by reference.)10.16 Lease dated January 10, 2006 between Registrant and The Irvine Company LLC. (Filed January 17, 2006 with Registrant’s Current Report onForm 8-K and incorporated herein by reference.)
10.17† Letter Agreement, dated June 28, 2006, by and between The Procter & Gamble Company and Biolase Technology, Inc. (Filed with Registrant’s Quarterly Report onForm 10-Q filed August 9, 2006 and incorporated herein by reference.)

5956


        
Exhibit
Exhibit
  Exhibit
  
Number
Number
 
Description
Number
 
Description
10.18† License Agreement, dated January 24, 2007, by and between The Procter & Gamble Company and Biolase Technology, Inc. (Filed with Registrant’s Quarterly Report on Form 10-Q filed May 10, 2007 and incorporated herein by reference.)10.18† License Agreement, dated January 24, 2007, by and between The Procter & Gamble Company and Biolase Technology, Inc. (Filed with Registrant’s Quarterly Report onForm 10-Q filed May 10, 2007 and incorporated herein by reference.)
10.19† License and Distribution Agreement dated as of August 8, 2006 by and among Biolase Technology, Inc. and Henry Schein, Inc. (Filed with Registrant’s Quarterly Report on Form 10-Q filed November 8, 2006 and incorporated herein by reference.)10.19† License and Distribution Agreement dated as of August 8, 2006 by and among Biolase Technology, Inc. and Henry Schein, Inc. (Filed with Registrant’s Quarterly Report onForm 10-Q filed November 8, 2006 and incorporated herein by reference.)
10.20† Addendum 1 to License and Distribution Agreement dated as of April 1, 2007 by and among Biolase Technology, Inc. and Henry Schein, Inc. (Filed with Registrant’s Quarterly Report on Form 10-Q filed August 9, 2007 and incorporated herein by reference.)10.20† Addendum 1 to License and Distribution Agreement dated as of April 1, 2007 by and among Biolase Technology, Inc. and Henry Schein, Inc. (Filed with Registrant’s Quarterly Report onForm 10-Q filed August 9, 2007 and incorporated herein by reference.)
10.21 Loan and Security Agreement entered into as of September 28, 2006, by and between Comerica Bank and Biolase Technology, Inc. (Filed with Registrant’s Current Report on Form 8-K filed October 4, 2006 and incorporated herein by reference.)10.21† Amendment to the License and Distribution Agreement dated February 29, 2008, by and between Biolase Technology, Inc. and Henry Schein, Inc. (Filed with Registrant’s Quarterly Report onForm 10-Q filed May 9, 2008 and incorporated herein by reference.)
10.22 Unconditional Guaranty, dated as of September 28, 2006, by BL Acquisition Corp. for the benefit of Comerica Bank under the Loan Agreement. (Filed with Registrant’s Current Report on Form 8-K filed October 4, 2006 and incorporated herein by reference.)10.22 Letter Agreement dated as of December 23, 2008 by and among Biolase Technology, Inc. and Henry Schein, Inc.
10.23 Unconditional Guaranty, dated as of September 28, 2006, by BL Acquisition II, Inc. for the benefit of Comerica Bank under the Loan Agreement. (Filed with Registrant’s Current Report on Form 8-K filed October 4, 2006 and incorporated herein by reference.)10.23 Employment Agreement dated January 2, 2008 between the Registrant and Jake P. St. Philip (Filed with Registrant’s Quarterly Report onForm 10-Q filed May 9, 2008 and incorporated herein by reference.)
10.24 First Amendment to Loan and Security Agreement dated as of October 5, 2007, by and between Comerica Bank and Biolase Technology, Inc. (Filed with Registrant’s Quarterly Report on Form 10-Q filed November 9, 2007 and incorporated herein by reference.)10.24 Stock Option Agreement dated March 7, 2008 between the Registrant and Jake P. St. Philip (Filed with Registrant’s Quarterly Report onForm 10-Q filed May 9, 2008 and incorporated herein by reference.)
14.1 Biolase Technology, Inc. Code of Business Conduct and Ethics. (Filed with the Registrant’s Definitive Proxy Statement for its 2004 Annual Meeting of Stockholders filed May 10, 2004 and incorporated herein by reference.)10.25 Employment Agreement dated April 29, 2008 between the Registrant and David M. Mulder (Filed with Registrant’s Quarterly Report onForm 10-Q filed August 8, 2008 and incorporated herein by reference.)
21.1 Subsidiaries of the Registrant.10.26 Separation and General Release Agreement dated January 22, 2008 between the Registrant and Keith G. Bateman (Filed with Registrant’s Quarterly Report onForm 10-Q filed May 9, 2008 and incorporated herein by reference.)
23.1 Consent of Independent Registered Public Accounting Firm, BDO Seidman, LLP10.27 Separation and General Release Agreement dated January 31, 2008 between the Registrant and Jeffrey W. Jones (Filed with Registrant’s Quarterly Report onForm 10-Q filed May 9, 2008 and incorporated herein by reference.)
24.1 Power of Attorney (included in Signature page).10.28 Settlement Agreement between the Registrant and Diodem LLC dated September 30, 2008.
31.1 Certification of CEO pursuant to Rule 13a-14(a) and Rule 15d-14(a), promulgated under the Securities Exchange Act of 1934, as amended.14.1 Biolase Technology, Inc. Code of Business Conduct and Ethics. (Filed with the Registrant’s Definitive Proxy Statement for its 2004 Annual Meeting of Stockholders filed May 10, 2004 and incorporated herein by reference.)
31.2 Certification of interim CFO pursuant to Rule 13a-14(a) and Rule 15d-14(a), promulgated under the Securities Exchange Act of 1934, as amended.21.1 Subsidiaries of the Registrant.
32.1 Certification of CEO pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.23.1 Consent of Independent Registered Public Accounting Firm, BDO Seidman, LLP
32.2 Certification of interim CFO pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.24.1 Power of Attorney (included in Signature page).
31.1 Certification of CEO pursuant toRule 13a-14(a) andRule 15d-14(a), promulgated under the Securities Exchange Act of 1934, as amended.
31.2 Certification of interim CFO pursuant toRule 13a-14(a) andRule 15d-14(a), promulgated under the Securities Exchange Act of 1934, as amended.
32.1 Certification of CEO pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2 Certification of interim CFO pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
 
 
Confidential treatment was granted for certain confidential portions of this exhibit pursuant toRule 24b-2 under the Securities Exchange Act of 1934. In accordance withRule 24b-2, these confidential portions were omitted from this exhibit and filed separately with the Securities and Exchange Commission.
 
*Management contract or compensatory plan or arrangement.

6057


SIGNATURES
 
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
 
Biolase Technology, Inc.,
a Delaware Corporation
(registrant)
 
 By: 
/s/  JAKE ST. PHILIPDAVID M. MULDER
Jake St. PhilipDavid M. Mulder
Chief Executive Officer
 
Dated: March 14, 200816, 2009
 
POWER OF ATTORNEY
 
We, the undersigned officers and directors of BIOLASE Technology, Inc., do hereby constitute and appoint Jake St. PhilipDavid M. Mulder and Frederick M. Capallo, and each of them, our true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this report, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby, ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
 
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated:
 
       
Signature
 
Title
 
Date
 
     
/s/  JAKE ST. PHILIPDAVID M. MULDER

Jake St. PhilipDavid M. Mulder
 Chief Executive Officer, (Principal Executive Officer) and Director March 14, 200816, 2009
     
/s/  FREDERICK M. CAPALLO

Frederick M. Capallo
 Interim Chief Financial Officer, (Principal
(Principal Financial Officer and
Principal Accounting Officer)
 March 14, 200816, 2009
     
/s/  GEORGE V. D’ARBELOFF

George V. d’Arbeloff
 Director and Chairman of the Board March 14, 200816, 2009
     
/s/  FEDERICO PIGNATELLI

Federico Pignatelli
 President, Director and Chairman Emeritus March 14, 200816, 2009
     
/s/  DR. ROBERT M. ANDERTON, DDS

Dr. Robert M. Anderton
 Director March 14, 200816, 2009


6158


       
Signature
 
Title
 
Date
 
     
/s/  DANIEL S. DURRIE, M.D.

Daniel S. Durrie, M.D.
 Director March 14, 200816, 2009
     
/s/  NEIL J. LAIRD

Neil J. Laird
 Director March 14, 200816, 2009
     
/s/  JAMES LARGENT

James Largent
 Director March 14, 200816, 2009


6259


BIOLASE TECHNOLOGY, INC.
 
Index to Consolidated Financial Statements and Schedule
 
     
  Page
 
  F-2 
  F-3 
  F-4 
  F-5 
  F-6 
  F-7 
SCHEDULE
    
II. Consolidated Valuation and Qualifying Accounts and Reserves  S-1 
 
All Schedules, except Schedule II, have been omitted as the required information is shown in the consolidated financial statements, or notes thereto, or the amounts involved are not significant or the schedules are not applicable.


F-1


 
Report of Independent Registered Public Accounting Firm
 
The Board of Directors and Stockholders
BIOLASE Technology, Inc.
Irvine, California
 
We have audited the accompanying consolidated balance sheets of BIOLASE Technology, Inc. (the “Company”) as of December 31, 20072008 and 20062007 and the related consolidated statements of operations, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2007.2008. In connection with our audits of the financial statements, we have also audited the accompanying financial statement schedulesschedule as of and for the years ended December 31, 2008, 2007 2006 and 2005.2006. These financial statements and schedulesschedule are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements and schedulesschedule based on our audits.
 
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements and schedules.schedule. We believe that our audits provide a reasonable basis for our opinion.
 
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of BIOLASE Technology, Inc. at December 31, 20072008 and 2006,2007, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2007,2008, in conformity with accounting principles generally accepted in the United States of America.
Also, in our opinion, the financial statement schedules,schedule, when considered in relation to the basic consolidated financial statements taken as a whole, presentpresents fairly, in all material respects, the information set forth therein.
As discussed in Note 2 to the consolidated financial statements, effective January 1, 2006, the Company adopted Statement of Financial Accounting Standards No. 123R,Share-Based Payment, which addresses the accounting for stock-based payment transactions in which an enterprise receives employee services in exchange for (a) equity instruments of the enterprise or (b) liabilities that are based on the fair value of the enterprise’s equity instruments or that may be settled by the issuance of such equity instruments.
 
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), BIOLASE Technology Inc.’s internal control over financial reporting as of December 31, 2007,2008, based on criteria established inInternal Control — Integrated Frameworkissued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) and our report dated March 14, 200816, 2009 expressed an adverseunqualified opinion thereon.
 
/s/ BDO Seidman, LLP
Costa Mesa, California
March 14, 200816, 2009


F-2


BIOLASE TECHNOLOGY, INC.
 
CONSOLIDATED BALANCE SHEETS
(in thousands, except per share data)
 
                
 December 31,  December 31, 
 2007 2006  2008 2007 
ASSETS
ASSETS
ASSETS
Current assets:
                
Cash and cash equivalents $14,566  $14,676  $11,235  $14,566 
Accounts receivable, less allowance of $1,033 and $1,357 in 2007 and 2006, respectively  11,266   15,193 
Accounts receivable, less allowance of $526 and $1,033 in 2008 and 2007, respectively  3,758   11,266 
Inventory, net  7,627   7,774   12,410   7,627 
Prepaid expenses and other current assets  2,317   1,346   1,391   2,317 
          
Total current assets
  35,776   38,989   28,794   35,776 
Property, plant and equipment, net  4,040   4,851   3,040   4,040 
Intangible assets, net  1,208   1,469   613   1,208 
Goodwill  2,926   2,926   2,926   2,926 
Deferred tax asset  50   35   29   50 
Other assets  308   308   306   308 
          
Total assets
 $44,308  $48,578  $35,708  $44,308 
          
LIABILITIES AND STOCKHOLDERS’ EQUITYLIABILITIES AND STOCKHOLDERS’ EQUITY
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities:
                
Line of credit $3,552  $  $5,404  $3,552 
Accounts payable  6,151   7,699   7,509   6,151 
Accrued liabilities  9,431   8,560   8,255   9,431 
Deferred revenue, current portion  5,649   5,431   2,603   5,649 
          
Total current liabilities
  24,783   21,690   23,771   24,783 
Deferred tax liabilities  342   271   376   342 
Deferred revenue — long-term  2,236   4,278   1,875   2,236 
Other liabilities — long-term  456   373   296   456 
          
Total liabilities
  27,817   26,612   26,318   27,817 
          
Commitments and contingencies (Note 8)                
Stockholders’ equity:
                
Preferred stock, par value $0.001; 1,000 shares authorized, no shares issued and outstanding            
Common stock, par value $0.001; 50,000 shares authorized, 25,967 and 25,741 shares issued in 2007 and 2006, respectively; 24,003 shares and 23,777 shares outstanding in 2007 and 2006, respectively  26   26 
Common stock, par value $0.001; 50,000 shares authorized, 26,208 and 25,967 shares issued in 2008 and 2007, respectively; 24,244 shares and 24,003 shares outstanding in 2008 and 2007, respectively  27   26 
Additional paid-in capital  113,430   111,415   115,698   113,430 
Accumulated other comprehensive gain  54   108 
Accumulated other comprehensive (loss) gain  (187)  54 
Accumulated deficit  (80,620)  (73,184)  (89,749)  (80,620)
          
  32,890   38,365   25,789   32,890 
Treasury stock (cost of 1,964 shares repurchased)  (16,399)  (16,399)  (16,399)  (16,399)
          
Total stockholders’ equity
  16,491   21,966   9,390   16,491 
          
Total liabilities and stockholders’ equity
 $44,308  $48,578  $35,708  $44,308 
          
 
See accompanying notes to consolidated financial statements.


F-3


BIOLASE TECHNOLOGY, INC.
 
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
 
                        
 Years Ended December 31,  Years Ended December 31, 
 2007 2006 2005  2008 2007 2006 
Products and services revenues $63,085  $68,852  $61,486  $61,010  $63,085  $68,852 
License fees and royalty revenue  3,804   848   494   3,615   3,804   848 
              
Net revenue  66,889   69,700   61,980   64,625   66,889   69,700 
Cost of revenue  32,364   33,211   31,051   31,963   32,364   33,211 
              
Gross profit  34,525   36,489   30,929   32,662   34,525   36,489 
              
Other income, net     6   80         6 
              
Operating expenses:                        
Sales and marketing  26,648   24,400   24,730   22,040   26,648   24,400 
General and administrative  10,941   11,709   16,869   12,006   10,941   11,709 
Engineering and development  5,104   4,876   6,390   5,580   5,104   4,876 
Patent infringement legal settlement  1,232      348 
Impairment of intangible asset  232       
Impairment of property, plant and equipment  355       
Restructuring charge  802            802    
Patent infringement legal settlement     348    
              
Total operating expenses  43,495   41,333   47,989   41,445   43,495   41,333 
              
Loss from operations  (8,970)  (4,838)  (16,980)  (8,783)  (8,970)  (4,838)
Gain (loss) on foreign currency transactions  1,354   251   (462)
Loss on sale of marketable securities        (45)
(Loss) gain on foreign currency transactions  (186)  1,354   251 
Interest income  580   448   594   118   580   448 
Interest expense  (81)  (388)  (348)  (157)  (81)  (388)
              
Non-operating income (loss), net  1,853   311   (261)
Non-operating (loss) income, net  (225)  1,853   311 
              
Loss before income tax provision  (7,117)  (4,527)  (17,241)  (9,008)  (7,117)  (4,527)
Income tax provision  163   162   269   121   163   162 
              
Net loss $(7,280) $(4,689) $(17,510) $(9,129) $(7,280) $(4,689)
              
Net loss per share:                        
Basic $(0.31) $(0.20) $(0.76) $(0.38) $(0.31) $(0.20)
              
Diluted $(0.31) $(0.20) $(0.76) $(0.38) $(0.31) $(0.20)
              
Shares used in the calculation of net loss per share:                        
Basic  23,853   23,472   23,051   24,178   23,853   23,472 
              
Diluted  23,853   23,472   23,051   24,178   23,853   23,472 
              
 
See accompanying notes to consolidated financial statements.


F-4


BIOLASE TECHNOLOGY, INC.
 
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
(in thousands)
 
                                                                
 Common Stock
     Accumulated
        Common Stock
     Accumulated
       
 and Additional
     Other
   Total
    and Additional
     Other
   Total
   
 Paid-in Capital Treasury Stock Comprehensive
 Accumulated
 Stockholders’
 Comprehensive
  Paid-in Capital Treasury Stock Comprehensive
 Accumulated
 Stockholders’
 Comprehensive
 
 Shares Amount Shares Amount Gain (Loss) Deficit Equity Income (Loss)  Shares Amount Shares Amount Gain (Loss) Deficit Equity Income (Loss) 
Balances, December 31, 2004  24,482  $101,587   (1,964) $(16,399) $(225) $(50,985) $33,978  $(23,292)
   
Exercise of stock options  329   1,243               1,243     
Issuance of common stock  407   3,533               3,533     
Issuance of warrants     443               443     
Dividend declared     (689)              (689)    
Stock-based compensation     189               189     
Compensation for stock option acceleration     204               204     
Net loss                 (17,510)  (17,510)  (17,510)
Unrealized loss on marketable securities              (105)     (105)  (105)
Foreign currency translation adjustment              8      8   8 
                 
Balances, December 31, 2005  25,218   106,510   (1,964)  (16,399)  (322)  (68,495)  21,294   (17,607)  25,218  $106,510   (1,964) $(16,399) $(322) $(68,495) $21,294  $(17,607)
      
Exercise of stock options  523   3,086               3,086       523   3,086               3,086     
Stock-based compensation     1,497               1,497          1,497               1,497     
Diodem Patent Settlement     348               348          348               348     
Net loss                 (4,689)  (4,689)  (4,689)                 (4,689)  (4,689)  (4,689)
Reclassification adjustment equal to realized gain on marketable securities              118      118   118               118      118   118 
Foreign Currency Translation adjustment              312      312   312               312      312   312 
                                  
Balances, December 31, 2006  25,741   111,441   (1,964)  (16,399)  108   (73,184)  21,966   (4,259)  25,741   111,441   (1,964)  (16,399)  108   (73,184)  21,966   (4,259)
      
Exercise of stock options  226   727               727     
Stock-based compensation, net     1,265               1,265     
Exercise of stock options, net  226   727               727     
Stock-based compensation     1,265               1,265     
Other compensation     23               23          23               23     
Net loss                 (7,280)  (7,280)  (7,280)                 (7,280)  (7,280)  (7,280)
Adjustment for implementation of FIN 48                 (156)  (156)                     (156)  (156)    
Foreign Currency Translation adjustment              (54)     (54)  (54)              (54)     (54)  (54)
                                  
Balances, December 31, 2007  25,967  $113,456   (1,964) $(16,399) $54  $(80,620) $16,491  $(7,334)  25,967   113,456   (1,964)  (16,399)  54   (80,620)  16,491   (7,334)
                    
Exercise of stock options, net  241   532               532     
Stock-based compensation     1,735               1,735     
Other non-cash compensation     2               2     
Net loss                 (9,129)  (9,129)  (9,129)
Foreign Currency Translation adjustment              (241)     (241)  (241)
                 
Balances, December 31, 2008  26,208  $115,725   (1,964) $(16,399) $(187) $(89,749) $9,390  $(9,370)
                 
 
See accompanying notes to consolidated financial statements.


F-5


BIOLASE TECHNOLOGY, INC.
 
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
 
                        
 Years Ended December 31,  Years Ended December 31, 
 2007 2006 2005  2008 2007 2006 
Cash Flows From Operating Activities:
                        
Net loss $(7,280) $(4,689) $(17,510) $(9,129) $(7,280) $(4,689)
Adjustments to reconcile net loss to net cash and cash equivalents (used in) provided by operating activities:                        
Depreciation and amortization  1,895   2,301   1,233   1,909   1,895   2,301 
Residual cost of demo equipment sold  184         10   184    
Loss on disposal of assets, net     (10)  (53)        (10)
Impairment of property, plant and equipment  387       
Impairment of intangible asset  232       
Provision for bad debts  (264)  941   131   (68)  (264)  941 
Provision for inventory excess and obsolescence  89   140   711   104   89   140 
Stock-based compensation  1,265   1,497   393   1,735   1,265   1,497 
CEO compensation  23       
Other non-cash compensation  2   23    
Issuance of common stock for patent litigation settlement     348            348 
Deferred income taxes  61   34   41   52   61   34 
Changes in operating assets and liabilities:                        
Accounts receivable  4,381   (7,730)  1,100   7,457   4,381   (7,730)
Inventory  59   709   (1,155)  (4,887)  59   709 
Prepaid expenses and other current assets  (779)  619   (442)  167   (779)  619 
Accounts payable and accrued liabilities  (1,065)  (1,198)  1,722   888   (1,065)  (1,198)
Accrued legal settlement        (3,000)         
Deferred revenue  (1,838)  7,463   (222)  (3,379)  (1,838)  7,463 
              
Net cash and cash equivalents (used in) provided by operating activities  (3,269)  425   (17,051)  (4,520)  (3,269)  425 
              
Cash Flows From Investing Activities:
                        
Purchase of available-for-sale securities        (19,977)         
Proceeds from sale or maturity of available-for-sale securities     9,981   35,291         9,981 
Additions to property, plant and equipment  (775)  (2,325)  (1,864)  (981)  (775)  (2,325)
Proceeds from sale of property, plant and equipment     53            53 
Additions to other intangible assets  (100)           (100)   
              
Net cash and cash equivalents (used in) provided by investing activities  (875)  7,709   13,450   (981)  (875)  7,709 
              
Cash Flows From Financing Activities:
                        
Borrowings under a line of credit  4,468   14,047   17,225   29,340   4,468   14,047 
Payments under a line of credit  (916)  (19,047)  (12,225)  (27,488)  (916)  (19,047)
Proceeds from exercise of stock options and warrants  727   3,086   1,244   532   727   3,086 
Payment of cash dividend        (689)         
              
Net cash and cash equivalents provided by (used in) financing activities  4,279   (1,914)  5,555   2,384   4,279   (1,914)
              
Effect of exchange rate changes  (245)  184   178   (214)  (245)  184 
              
(Decrease) increase in cash and cash equivalents
  (110)  6,404   2,132   (3,331)  (110)  6,404 
Cash and cash equivalents, beginning of year
  14,676   8,272   6,140   14,566   14,676   8,272 
              
Cash and cash equivalents, end of year
 $14,566  $14,676  $8,272  $11,235  $14,566  $14,676 
              
Supplemental cash flow disclosure:
                        
Cash paid during the period for:                        
Interest $81  $362  $306  $157  $81  $362 
Income taxes $241  $167  $4  $208  $241  $167 
Diodem legal settlement:            
Total consideration $  $  $6,976 
Common stock issued        (3,533)
Warrants issued        (443)
       
Cash paid $  $  $3,000 
Non-cash investing activity:
                        
       
Leasehold improvements capitalized and paid by landlord $  $569  $  $  $  $569 
              
 
See accompanying notes to consolidated financial statements.


F-6


BIOLASE TECHNOLOGY, INC.
 
NOTES TO CONSOLIDATED FINANCIAL STATEMENT
 
NOTE 1 —BASIS OF PRESENTATION
NOTE 1 — BASIS OF PRESENTATION
 
The Company
 
BIOLASE Technology Inc., incorporated in Delaware in 1987, is a medical technology company operating in one business segment that designs, manufactures and markets advanced dental, cosmetic and surgical lasers and related products.
 
Basis of Presentation
 
The consolidated financial statements include the accounts of BIOLASE Technology, Inc. and its wholly-owned subsidiaries. We have eliminated all material intercompany transactions and balances in the accompanying consolidated financial statements. Certain amounts for prior years have been reclassified to conform to the current year presentation.
 
In the fourth quarter of fiscal 2007, we recorded certain amounts to “gain (loss) on foreign currency transactions” relating to prior 2007 quarters resulting in a reduction of our net loss by $1.0 million (or $0.04 per share) for the quarter and year ended December 31, 2007. The adjustments resulted from the misapplication of Statement of Financial Accounting Standard (“FAS”) No. 52,Foreign Currency Translation, to certain foreign-currency transactions between BIOLASE Technology, Inc. and certain of our foreign subsidiaries. We concluded that the amounts were not material to previously-reported interim periods.
 
Use of Estimates
 
The preparation of these consolidated financial statements in conformity with accounting principles generally accepted in the United States of America (GAAP) requires us to make estimates and assumptions that affect amounts reported in the consolidated financial statements and the accompanying notes. Significant estimates in these consolidated financial statements include allowances on accounts receivable, inventory and deferred taxes, as well as estimates for accrued warranty expenses, the realizability of goodwill and indefinite-lived intangible assets, effects of stock-based compensation and the provision or benefit for income taxes. Due to the inherent uncertainty involved in making estimates, actual results reported in future periods may differ materially from those estimates.
 
Liquidity
We believe we currently possess sufficient resources to meet the cash requirements of our operations for at least the next year. Our basis for this is the following.
NOTE 2 —SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES• Beginning in the fourth quarter of 2008, we implemented substantial cost reduction measures including the reduction of employment and expenses throughout all functional areas of our business. We have reduced our headcount from approximately 234 at September 30, 2008 to approximately 146 as of February 28, 2009.
• On February 27, 2009, we entered into a letter agreement, or Agreement, with HSIC amending the term of the License and Distribution Agreement through March 31, 2010. Included in this Agreement are minimum purchase requirements of approximately $42.7 million over the initial fourteen-month term starting in February 2009. Additionally, the Agreement contains guaranteed bi-monthly minimum purchases of our lasers and associated equipment. The Agreement can be extended for two additional optional twelve month terms and the agreement which require escalation minimums of between 7.5 percent and 20 percent over actual or minimum sales, whichever is greater.
• During the first quarter of 2009, we made the decision to begin the transition of sales in countries served by our foreign subsidiaries located in Germany, Spain, Australia and New Zealand from direct to distributor. As part of the Agreement with HSIC, HSIC will become our distributor in each of these


F-7


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
countries as well as in the future in additional foreign countries. As a result of these developments, we have begun the process of shutting down the foreign subsidiaries which have been recording significant losses ever since being established to sell direct in those countries in 2006.
• We are in the process of reviewing our inventory levels and plan to reduce the levels to more historical year end amounts of approximately $7 million. Our new Agreement with HSIC will allow us to better forecast our inventory needs and not having inventory located at our foreign subsidiaries will help in this objective.
Although we believe that we will have sufficient resources to meet our obligations and sustain our operations during the next twelve months, there can be no assurance that the resources we believe will be available will prove to be available or sufficient, or that additional resources will be available if necessary to fund our operations. We are substantially dependent on our major distributor and the continued performance of this distributor to make committed purchases of our products and associated consumables under our distribution agreement, and the receipt of cash in connection with those purchases, is essential to our liquidity. In addition, we presently do not have any debt financing in place with a bank or other financial institution. The absence of such debt financing availability could adversely impact our operations. Our obligations and operating requirements may require us to seek additional funding through public or private equity or debt financing, and we have no commitments for financing of any kind at this time. There can be no assurance that we will be able to obtain requisite financing if necessary to fund existing obligations and operating requirements on acceptable terms or at all.
NOTE 2 — SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
 
Cash and Cash Equivalents
 
We consider all highly liquid investments with maturities of three months or less when purchased, as cash equivalents. We invest excess cash primarily in money market funds. Cash equivalents are carried at cost, which approximates market.
 
Accounts Receivable
 
Trade accounts receivable are recorded at the invoiced amount and do not bear interest. The allowance for doubtful accounts is our best estimate of the amount of probable credit losses in our existing accounts receivable. We evaluate our allowance for doubtful accounts based upon our knowledge of customers and their compliance with credit terms. The evaluation process includes a review of customers’ accounts on a regular basis which incorporates input from sales, service and finance personnel. The review process evaluates all account balances with amounts outstanding more than 60 days and other specific amounts for which information obtained indicates that the balance may be uncollectible. The allowance for doubtful accounts is adjusted based on such evaluation, with a corresponding provision included in general and administrative expenses. Account balances are charged off against the allowance when we feel it is probable the receivable will not be recovered. We do not have any off-balance-sheet credit exposure related to our customers.


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BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
Inventory
 
We value inventory at the lower of cost (determined using thefirst-in, first-out method) or market. We periodically review our inventory for excess quantities and obsolescence. We evaluate quantities on hand, physical condition, and technical functionality as these characteristics may be impacted by anticipated customer demand for current products and new product introductions. The allowance is adjusted based on such evaluation, with a corresponding provision included in cost of revenue.


F-8


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
Property, Plant and Equipment
 
We state property, plant and equipment at acquisition cost less accumulated depreciation. Maintenance and repairs are expensed as incurred. Upon sale or disposition of assets, any gain or loss is included in the consolidated statements of operations.
The cost of property, plant and equipment is depreciated using the straight-line method over the following estimated useful lives of the respective assets, except for leasehold improvements, which are depreciated over the lesser of the estimated useful lives of the respective assets or the related lease terms.
 
   
Building 30 years
Leasehold improvements 3 to 5 years
Equipment and computers 3 to 5 years
Furniture and fixtures 5 years
 
Depreciation expense for 2008, 2007 2006 and 20052006 was approximately $1,547,000, $1,534,000, $1,939,000, and $872,000,$1,939,000, respectively. Depreciation expense for the year ended December 31, 2006 included approximately $400,000 of accelerated depreciation resulting from the abandonment of certain equipment, furniture and fixtures and computer related equipment in connection with our move to a new leased facility in April 2006 and a write-down totaling $262,000 related to a physical count of certain assets. In December 2008, we wrote down the building and land at our German facility by $355,000 to reflect the market value of the asset.
 
Goodwill and other Intangible Assets
In accordance with SFAS No. 142,Goodwill and Other Intangible Assets (“SFAS 142”), goodwill and other intangible assets with indefinite lives are no longer subject to amortization but are tested for impairment annually or whenever events or changes in circumstances indicate that the asset might be impaired. We operate in one operating segment and have one operating unit; therefore goodwill is tested for impairment at the consolidated level against the fair value of our Company. Per SFAS 142, the fair value of a reporting unit refers to the amount at which the unit as a whole could be bought or sold in a current transaction between willing parties. Quoted market prices in active markets are the best evidence of fair value and are used as the basis for measurement, if available. We assess potential impairment on an annual basis on June 30th and compare our market capitalization to our carrying amount, including goodwill. A significant decrease in our stock price could indicate a material impairment of goodwill which, after further analysis, could result in a material charge to operations. If goodwill is considered impaired, the impairment loss to be recognized is measured by the amount by which the carrying amount of the goodwill exceeds the implied fair value of that goodwill. Inherent in our fair value determinations are certain judgments and estimates, including projections of future cash flows, the discount rate reflecting the inherent risk in future cash flows, the interpretation of current economic indicators and market valuations, and strategic plans with regards to operations. A change in these underlying assumptions would cause a change in the results of the tests, which could cause the fair value of the reporting unit to be less that its respective carrying amount.
 
Costs incurred to acquire and successfully defend patents, and costs incurred to acquire trademarks and trade names are capitalized. Costs related to the internal development of technologies that we ultimately patent are expensed as incurred. Intangible assets, except those determined to have an indefinite life, are amortized using the straight-line method, our best estimate of the pattern of economic benefit, over the estimated useful life of the assets and are subject to periodic review for impairment whenever events or changes in circumstances indicate that the carrying amount of the asset may not be recoverable.
 
Long-Lived Assets
 
We account for long-lived assets, including intangible assets subject to amortization, in accordance with the provisions of FASSFAS 144,Accounting for the Impairment and Disposal of Long-Lived Assets. FAS 144(“SFAS 144”), which requires that


F-9


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
impairment losses to be recorded on long-lived assets be reviewed forused in operations when indicators of impairment, whenever eventssuch as reductions in demand or changessignificant economic slowdowns in circumstances indicate that theour industry, are present. Reviews are performed to determine whether carrying amountvalue of an asset may not be recoverable. Recoverability of assetsis impaired based on comparisons to be held and usedundiscounted expected future cash flows. If this comparison indicates that there is measured byimpairment, the impaired asset is written down to fair value, which is typically calculated using discounted expected future cash flows utilizing a comparisondiscount rate consistent with the guidance provided in FASB Concepts Statement No. 7,Using Cash Flow Information in Accounting Measurements.Impairment is based on the excess of the carrying amount of an asset to future net cash flows expected to be generated by the asset. If such assets are considered to be impaired, the impairment to be recognized is measured by the amount by which the carrying amount of the assets exceedsover the fair value of thethose assets. Assets to be disposed of are reported at the lower of the carrying amount or fair value less costs to sell.
 
Fair Value of Financial Instruments
 
Our financial instruments, consisting of cash, accounts receivable, accounts payable and other accrued expenses, approximate fair value because of the short maturity of these items.


F-8


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
Other Comprehensive (Loss) Income
 
Other comprehensive (loss) income encompasses the change in equity from transactions and other events and circumstances from non-owner sources and is included as a component of stockholders’ equity but is excluded from net (loss) income. Accumulated other comprehensive gain (loss) consists of the effects of foreign currency translation adjustments and unrealized gains or losses on marketable securities classified as available for sale.
 
Foreign Currency Translation and Transactions
 
Transactions of our German, Spanish, Australian and New Zealand subsidiaries are denominated in their local currencies. The results of operations and cash flows are translated at average exchange rates during the period, and assets and liabilities are translated at end-of-period exchange rates. Translation gains or losses are shown as a component of accumulated other comprehensive gain (loss) in stockholders’ equity. Gains and losses resulting from foreign currency transactions, which are denominated in a currency other than the entity’s functional currency, are included in the consolidated statements of operations.
 
In mid-October 2008, we significantly reduced the inter-company payable due from the foreign subsidiaries to us by making an approximately equal equity contribution which did not result in a significant change in global cash positions. Through the mid-October 2008 contribution date, foreign currency transactions gains and losses continued. Subsequent to the contribution date, foreign currency transactions gains and losses recorded on the remaining inter-company balances should be significantly reduced.
Revenue Recognition
 
Effective September 1, 2006, nearly all of our domestic sales are to Henry Schein, Inc., or HSIC, a large distributor of healthcare products to office-based practitioners; prior to this date, we sold our products directly to customers through our direct sales force. Internationally, we sell products through direct sales representatives and through distributors. We recognize revenue in accordance with SEC Staff Accounting Bulletin No. 104,Revenue Recognitionwhich requires that four basic criteria must be met before revenue can be recognized: (1) persuasive evidence of an arrangement exists; (2) delivery has occurred and title and the risks and rewards of ownership have been transferred to our customer or services have been rendered; (3) the price is fixed or determinable; and (4) collectibility is reasonably assured. We record revenue for all sales upon shipment assuming all other revenue recognition criteria are met.
 
On August 8, 2006, and as amended, we entered into a License and Distribution Agreement with HSIC, pursuant to which we granted HSIC the exclusive right to distribute our complete line of dental laser systems, accessories and services in the United States and Canada. As a result of this agreement, effective September 1,


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BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
2006, nearly all of our sales in the United States and Canada are made to HSIC. Sales to HSIC are recorded upon shipment from our facility and payment of our invoices is generally due within 60 days or less.
Additionally, on February 27, 2009, we entered into an agreement with HSIC in which HSIC will become our distributor in certain international countries including Germany, Spain, Australia and New Zealand and will be permitted to distribute our products in those additional markets where we do not have current distribution agreements in place.
On July 1, 2003, we adopted Emerging Issues Task Force (“EITF”) IssueNo. 00-21,Accounting for Revenue Arrangements with Multiple Deliverables, which requires us to evaluate whether the separate deliverables in our arrangements can be unbundled. We determined that the sales of our Waterlase system include separate deliverables consisting of the product, disposables used with the Waterlase, installation and training. For these sales, we apply the residual value method, which requires us to allocate the total arrangement consideration less the fair value of the undelivered elements to the delivered elements. We determined that the sales of our Diode system include separate deliverables consisting of the product, disposables and training. For these sales, we apply the relative fair value method, which requires us to allocate the total arrangement consideration to the relative fair value of each element. Included in deferred revenue as of December 31, 2008 and 2007 is $731,000 and 2006 is $1.3 million, and $818,000, respectively of deferred revenue attributable to undelivered elements, which primarily consists of training and installation.
 
Although all sales are final, we accept returns of products in certain, limited circumstances and record a provision for sales returns based on historical experience concurrent with the recognition of revenue. The sales returns allowance is recorded as a reduction of accounts receivable and revenue. As of December 31, 2008 and 2007, and 2006, $187,000 and $248,000, respectively, werewas recorded as a reduction of accounts receivable for sales returns.
 
Extended warranty contracts, which are sold to our non-distributor customers, are recorded as revenue on a straight-line basis over the period of the contracts, which is one year. Included in deferred revenue as of December 31, 2008 and 2007 is $761,000 and 2006 is $1.2 million and $1.4 million for our extended warranty contracts, respectively.


F-9


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
We recognize revenue for royalties under licensing agreements for our patented technology when the product using our technology is sold. We estimate and recognize the amount sold based on historical performance and current knowledge about the business operations of our licensees. Our estimates have been historically consistent with amounts reported by the licensees. Revenue from royalties was $198,000, $262,000 $292,000 and $493,000$292,000 for the years ended December 31, 2008, 2007 2006 and 2005,2006, respectively.
 
We may offer sales incentives and promotions on our products. We applyEITF 01-09, Accounting for Consideration Given by a Vendor to a Customer (Including a Reseller of the Vendor’s Products), in determining the appropriate treatment of the related costs of these programs.
 
On August 8, 2006 and as amended, we entered into a License and Distribution Agreement with HSIC, pursuant to which we granted HSIC the exclusive right to distribute our complete line of dental laser systems, accessories and services in the United States and Canada. As a result of this agreement, effective September 1, 2006, nearly all of our sales in the United States and Canada are made to HSIC. Sales to HSIC are recorded upon shipment from our facility and payment of our invoices is generally due within 60 days or less.
Provision for Warranty Expense
 
Our Waterlase laser systems are covered by a warranty against defects in material and workmanship for a period of up to one-year while ourezlasesystem warranty is up to two years. Our warranty covers parts and service for sales in our North American and international direct territories and parts only for international distributor sales. We estimate initial warranty costs at the time of product shipment based on historical experience. Estimated warranty expenses are recorded as an accrued liability, with a corresponding provision to cost of revenue. Costs under extended warranty contracts are charged to expense as incurred.


F-11


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
Changes in the initial product warranty accrual, and the expenses incurred under our initial and extended warranties, for the years ended December 31 were as follows (in thousands):
 
    
Initial warranty accrual, December 31, 2004 $911 
Warranty expenditures  (2,288)
Provision for estimated warranty cost  2,588 
       
Initial warranty accrual, December 31, 2005  1,211  $1,211 
Warranty expenditures  (3,165)  (3,165)
Provision for estimated warranty cost  4,352   4,352 
      
Initial warranty accrual, December 31, 2006  2,398   2,398 
Warranty expenditures  (3,438)  (3,438)
Provision for estimated warranty cost  3,027   3,027 
      
Initial warranty accrual, December 31, 2007 $1,987   1,987 
Warranty expenditures  (4,127)
Provision for estimated warranty cost  4,752 
      
Initial warranty accrual, December 31, 2008 $2,612 
   
 
Shipping and Handling Costs and Revenues
 
All shipping and handling costs are expensed as incurred and are recorded as a component of cost of revenue. Charges to our customers for shipping and handling are included as a component of revenue.
 
Advertising Costs
 
All advertising costs are expensed as incurred. Advertising costs incurred for the years ended December 31, 2008, 2007 2006 and 2005,2006, were approximately $776,000, $2.1 million and $987,000, and $1,551,000, respectively.


F-10


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
Engineering and Development
 
Engineering and development expenses consist of engineering personnel salaries and benefits, prototype supplies, contract services and consulting fees related to product development. In 2005, engineering and development expenses included $1.8 million related to the purchase of the SurgiLight license for the use of certain patents in the field of presbyopia. Engineering and development costs are expensed as incurred.
 
Income Taxes
 
Differences between accounting for financial statement purposes and accounting for tax return purposes are stated as deferred tax assets or deferred tax liabilities in the accompanying consolidated financial statements. The provision for income taxes represents the tax payable for the period and the change during the period in deferred tax assets and liabilities. We establish a valuation allowance when it is more likely than not that the deferred tax assets are not realizable.
 
In July 2006, the FASB issued FASB Interpretation No. 48,Accounting for Uncertainty in Income Taxes, An Interpretation of FASB Statement No. 109(“FIN 48”), which clarifies the accounting for uncertainty in income taxes recognized in the financial statements in accordance with FAS 109,Accounting for Income Taxes. FIN 48 provides that a tax benefit from an uncertain tax position may be recognized when it is more likely than not that the position will be sustained upon examination, including resolutions of any related appeals or litigation processes, based on the technical merits. Income tax positions must meet a more-likely-than-not recognition threshold at the effective date to be recognized upon the adoption of FIN 48 and in subsequent periods. This interpretation also provides guidance on measurement, derecognition, classification, interest and penalties, accounting in interim periods, disclosure and transition. We adopted the provisions of FIN 48 on January 1, 2007. As a result of the implementation of FIN 48, we recognized a $156,000 increase in the liability for unrecognized tax benefits, which was accounted for as an increase to our January 1, 2007 accumulated deficit balance.


F-12


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
We recognize interest and penalties related to unrecognized tax benefits within the income tax provision line in the accompanying consolidated statement of operations. Accrued interest and penalties are included within the related tax liability line in our consolidated balance sheet.
 
Stock-Based Compensation
 
Effective January 1, 2006, we adopted the provisions of FAS 123 (revised),Share-Based Payment,or FAS 123R, using the modified prospective transition method. Prior to the adoption of FAS 123R, we accounted for share-based payments to employees using the intrinsic value method under Accounting Principles Board, or “APB”, Opinion No. 25,Accounting for Stock Issued to Employees(“APB 25”), and the related interpretations. Under the provisions of APB 25, stock option awards were accounted for using fixed plan accounting whereby we recognized no compensation expense for stock option awards because the exercise price of options granted was equal to the fair value of the common stock at the date of grant. In March 2005, the SEC issued Staff Accounting Bulletin 107, (“SAB 107”), regarding the SEC Staff’s interpretation of FAS 123R, which provides the Staff’s views regarding interactions between FAS 123R and certain SEC rules and regulations and provides interpretations of the valuation of share-based payments for public companies. We have incorporated the provisions of SAB 107 in our adoption of FAS 123R.
 
Under the modified prospective transition method, the provisions of FAS 123R apply to new awards and to awards outstanding on January 1, 2006 and subsequently modified, repurchased or cancelled. Under the modified prospective transition method, compensation expense recognized in 2006 includes compensation costs for all share-based payments granted prior to, but not yet vested as of January 1, 2006, based on the grant-date fair value estimated in accordance with the original provisions of FAS 123, and compensation cost for all share-based payments granted subsequent to January 1, 2006, based on the grant-date fair value


F-11


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
estimated in accordance with the provisions of FAS 123R. Prior periods were not restated to reflect the impact of adopting the new standard.
On December 16, 2005, the Board of Directors and the Compensation Committee approved accelerating the exercisability of 1,337,500 unvested stock options outstanding under our 2002 stock incentive plan, effective as of December 16, 2005. The options were held by employees, including executive officers, and had a range of exercise prices of $5.98 to $14.36 per share. The closing price per share of our common stock on December 16, 2005, the last trading day before effectiveness of the acceleration, was $7.95. In order to prevent unintended personal benefits, shares of our common stock received upon exercise of an accelerated option remain subject to the original vesting period with respect to transferability of such shares and, consequently, may not be sold or otherwise transferred prior to the expiration of such original vesting period.
The purpose of accelerating vesting was to minimize our recognition of compensation expense associated with these options upon adoption of FAS 123R in the first quarter of fiscal 2006. The maximum aggregate pre-tax expense associated with the accelerated options that would have been reflected in our consolidated financial statements in future fiscal years is estimated at approximately $3.2 million. The accelerated exercisability of options created an additional compensation expense to provide for an estimate of the benefit that would be received by future terminating employees who exercise options prior to the term of their respective original vesting periods. The compensation expense was based on an estimate of the future turnover percentage of 18.63% times the intrinsic value of the accelerated stock options on December 16, 2005 and amounted to additional compensation expense of approximately $204,000, all of which was recognized in the fourth quarter of fiscal 2005.
 
As of December 31, 20072008 and 2006,2007, we had $2.5$2.3 million and $1.9$2.5 million of total unrecognized compensation cost, net of estimated forfeitures, related to unvested share-based compensation arrangements granted under our existing plans. We expect that cost to be recognized over a weighted average period of 1.2 years.1.0 year.
 
During the years ended December 31, 2008, 2007 and 2006, we recognized compensation cost related to stock options of $1,265,000$1.7 million, $1.3 million and $1,497,000,$1.5 million, respectively. The net impact to earnings for the years ended December 31, 2008, 2007 and 2006 was $(0.07), $(0.05) and $(0.06) per diluted share, respectively. During the year ended December 31, 2005, we recognized compensation cost related to stock options of $393,000. The following table summarizes the income statement classification of compensation expense associated with share-based payments (in thousands):
 
             
  Years Ended December 31, 
  2007  2006  2005 
 
Cost of revenue $134  $129  $ 
Sales and marketing  393   315   76 
General and administrative  641   1,011   128 
Engineering and development  97   42   189 
             
  $1,265  $1,497  $393 
             
Prior to January 1, 2006, we measured compensation cost for stock-based compensation plans using the intrinsic value method of accounting as prescribed under APB 25 and related interpretations, but disclosed the pro forma effects on net earnings and earnings per share as if compensation cost had been recognized based on the fair value-based method at the date of grant for stock options awarded consistent with the provisions of FAS 123.


F-12


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
The following table illustrates the effect on 2005 net loss and net loss per share if we had applied the fair value recognition provisions of FAS 123 to options granted under our stock-based employee compensation plans (in thousands except per share data):
     
  2005 
 
Reported net loss $(17,510)
Stock-based employee compensation expense included in net loss  393 
Total stock-based employee compensation expense determined under the fair value based method for all awards, net of related tax effects  (3,915)
     
Pro forma net loss $(21,032)
     
Basic net loss per share:    
Reported $(0.76)
Pro forma  (0.91)
Diluted net loss per share:    
Reported  (0.76)
Pro forma  (0.91)
             
  Years Ended December 31, 
  2008  2007  2006 
 
Cost of revenue $167  $134  $129 
Sales and marketing  473   393   315 
General and administrative  932   641   1,011 
Engineering and development  163   97   42 
             
  $1,735  $1,265  $1,497 
             
 
The Black-Scholes option valuation model was developed for use in estimating the fair value of traded options that have no vesting restrictions and are fully transferable. In addition, option valuation models require the input of highly subjective assumptions, including the expected stock price volatility. Our options have characteristics significantly different from those of traded options, and changes in the subjective input assumptions can materially affect the fair value estimate. For options granted prior and subsequent to January 1, 2006, we did and expect to continue to estimate their fair values using the Black-Scholes option-pricing model. This


F-13


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
option pricing model requires us to make several assumptions regarding the key variables used in the model to calculate the fair value of its stock options. The risk-free interest rate used by us is based on the U.S. Treasury yield curve in effect for the expected lives of the options at their dates of grant. Beginning July 1, 2005, we have used a dividend yield of zero as we do not intend to pay dividends on our common stock in the foreseeable future. The most critical assumption used in calculating the fair value of stock options is the expected volatility of our common stock. The expected term is estimated by analyzing our historical share option exercise experience over a five year period, in accordance with the provisions of SEC Staff Accounting Bulletin 107. We believe that the historic volatility of our common stock is a reliable indicator of future volatility, and accordingly, have used a stock volatility factor based on the historical volatility of our common stock over a period of time approximating the estimated lives of our stock options. Compensation expense is recognized using the straight-line method for all stock-based awards issued after January 1, 2006. Compensation expense is recognized only for those options expected to vest, with forfeitures estimated at the date of grant based on our historical experience and future expectations. FAS 123R requires forfeitures to be estimated at the time of the grant and revised as necessary in subsequent periods if actual forfeitures differ from those estimates.
 
The stock option fair values were estimated using the Black-Scholes option-pricing model with the following assumptions:
 
                        
 2007 2006 2005  2008 2007 2006 
Expected term (years)  4.61   4.20   4.00   5.10   4.61   4.20 
Volatility  60%  58%  63%  68%  60%  58%
Annual dividend per share $0.00  $0.00  $0.00  $0.00  $0.00  $0.00 
Risk-free interest rate  3.92%  4.75%  3.70%  2.80%  3.92%  4.75%


F-13


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
Net Loss Per Share — Basic and Diluted
 
Basic net loss per share is computed by dividing loss available to common stockholders by the weighted-average number of common shares outstanding for the period. In computing diluted loss per share, the weighted average number of shares outstanding is adjusted to reflect the effect of potentially dilutive securities.
 
Outstanding stock options and warrants to purchase 4,581,000, 4,492,000 3,939,000 and 4,392,0003,939,000 shares were not included in the calculation of diluted loss per share amounts for the years ended December 31, 2008, 2007 2006 and 2005,2006, respectively, as their effect would have been anti-dilutive.
 
Recent Accounting Pronouncements
 
On September 15, 2006, the FASB issuedEffective January 1, 2008, we adopted FAS 157,Fair Value Measurements (“, or FAS 157”).This157, with the exception of the application of the statement provides enhanced guidance for usingto non-recurring nonfinancial assets and nonfinancial liabilities, which defines fair value as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants at the measurement date. FAS 157 establishes a three-level fair value hierarchy that prioritizes the inputs used to measure assetsfair value. This hierarchy requires entities to maximize the use of observable inputs and liabilities. This statement also responds to investors’ requests for expanded information aboutminimize the extent to which companies measure assets and liabilities at fair value, the informationuse of unobservable inputs. The three levels of inputs used to measure fair value are as follows:
Level 1 — Quoted prices in active markets for identical assets or liabilities.
Level 2 — Observable inputs other than quoted prices included in Level 1, such as quoted prices for similar assets and the effect of fair value measurements on earnings. FAS 157 applies whenever other standards require (or permit)liabilities in active markets; quoted prices for identical or similar assets or liabilities in markets that are not active; or other inputs that are observable or can be corroborated by observable market data.


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BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
Level 3 — Unobservable inputs that are supported by little or no market activity and that are significant to be measured atthe fair value.value of the assets or liabilities. This includes certain pricing models, discounted cash flow methodologies and similar techniques that use significant unobservable inputs.
Our adoption of FAS 157 doesdid not expand the usehave an impact on our financial position or results of fair value in any new circumstances. This statement is effective for financial statements issued for fiscal years beginning after November 15, 2007 and interim periods within those fiscal years.operations. On February 12, 2008, the FASB issued Staff PositionNo. FAS 157-2(“157-2, orFSP 157-2”).FSP157-2.FSP 157-2 delays the effective date of FAS 157 for non-financial assets and liabilities, as defined, to fiscal years beginning after November 1, 2008. We do not believe that the adoption of the provisions of FAS 157 orFASFSP 157-2 will materially impact our consolidated financial position and consolidated results of operations.
 
In February 2007,On October 10, 2008, the FASB issued FASB Staff PositionNo. FAS 157-3,Determining the Fair Value of a Financial Asset in a Market that is Not Active orFSP 157-3, which clarifies the application of FAS 157 in an inactive market and provides an illustrative example to demonstrate how the fair value of a financial asset is determined when the market for that financial asset is inactive.FSP 157-3 was issued on October 10, 2008 and is effective upon issuance, including prior periods for which financial statements have not been issued. The adoption ofFAS 157-3 had no impact on our financial statements.
Effective January 1, 2008, we adopted FAS 159,The Fair Value Option for Financial Assets and Financial Liabilities — Including an amendment of FASB Statement 115that, or FAS 159, which provides companies with anentities the option to reportmeasure many financial instruments and certain financial assets and liabilities in their entiretyother items at fair value. This statement is effective as ofEntities that choose the beginning of an entity’s first fiscal year that begins after November 15, 2007. The fair value option may be applied instrument by instrument, and may be applied only to entire instruments. A business entity would reportwill recognize unrealized gains and losses on items for which the fair value option has beenwas elected in earnings at each subsequent reporting date. We are evaluating our options provided for under this statement and their potentialhave currently chosen not to elect the fair value option to measure certain financial instruments. As such, the adoption of FAS 159 had no impact on our consolidated financial statements when implemented. This statement is being reviewed in conjunction with the requirements of FAS 157 discussed above.statements.
 
In December 2007, the FASB issued FAS 141 (revised 2007),Business Combinations(“, or FAS 141(R)”), which expands the definition of a business and a business combination, requires the fair value of the purchase price of an acquisition including the issuance of equity securities to be determined on the acquisition date, requires that all assets, liabilities, contingent consideration, contingencies and in-process research and development costs of an acquired business be recorded at fair value at the acquisition date, requires that acquisition costs generally be expensed as incurred, requires that restructuring costs generally be expensed in periods subsequent to the acquisition date, and requires changes in accounting for deferred tax asset valuation allowances and acquired income tax uncertainties after the measurement period to impact income tax expense. FAS 141(R) is effective for business combinations for which the acquisition date is on or after the beginning of the first annual reporting period beginning on or after December 15, 2008. We do not believe that the adoption of the provisions of FAS 141(R) will materially impact our consolidated financial position and consolidated results of operations.
 
In December 2007, the FASB issued FAS 160,Noncontrolling Interests in Consolidated Financial Statements, an Amendment of ARB No. 51,(“ or FAS 160”),160, which changes the accounting and reporting for minority interests such that minority interests will be recharacterized as noncontrolling interests and will be


F-14


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
required to be reported as a component of equity, and requires that purchases or sales of equity interests that do not result in a change in control be accounted for as equity transactions and, upon a loss of control, requires the interest sold, as well as any interest retained, to be recorded at fair value with any gain or loss recognized in earnings. FAS 160 is effective for fiscal years beginning on or after December 15, 2008 and interim periods within those years. We do not believe that the adoption of the provisions of FAS 160 will materially impact our consolidated financial position and consolidated results of operations.
 
NOTE 3 —INVESTMENTS IN MARKETABLE SECURITIES
In March 2008, the FASB issued FAS 161,Disclosures about Derivative Instruments and Hedging Activities, or FAS 161. FAS 161 requires additional disclosures related to the use of derivative instruments, the accounting for derivatives and how derivatives impact financial statements. FAS 161 is effective for fiscal years and interim periods beginning after November 15, 2008. We account for our marketable securities in accordance with FAS 115,Accounting for Certain Investments in Debt and Equity Securities. Investments classified as “available for sale” are reported at fair value with unrealized gains (losses) recorded as a component of accumulated other comprehensive gain (loss) until realized. Indo not believe that the event the fair value of an investment declines and is deemed to be other than temporary, we write down the carrying valueadoption of the investment to its fair value. Our investments are comprised of U.S. treasury debt securities, have been classified as available-for-sale, and have maturities greater than three months and less than one year. As of December 31, 2007 and 2006, we had no investments in marketable securities.
Realized losses for the year ended December 31, 2005 were $45,000.
NOTE 4 —SUPPLEMENTARY BALANCE SHEET INFORMATION
         
  December 31, 
ACCOUNTS RECEIVABLE (in thousands):
 2007  2006 
 
Components of accounts receivable, net of allowances are as follows:        
Trade $10,483  $14,993 
Royalties  62   113 
WCLI co-sponsorship  300    
License fee  250    
Other  171   87 
         
Total receivables $11,266  $15,193 
         
Following are the changes in the allowance for doubtful accounts and the allowance for sales returns during the years ended 2007, 2006 and 2005 (in thousands):
                 
     Charges
       
  Balance at
  (Reversals)
  Write-offs
  Balance at
 
  Beginning
  to Cost or
  and
  End of
 
  of Year  Expenses  Returns  Year 
 
Year Ended December 31, 2005                
Allowance for doubtful accounts  384   131   (95)  420 
Allowance for sales returns  420   298   (492)  226 
Year Ended December 31, 2006                
Allowance for doubtful accounts  420   941   (4)  1,357 
Allowance for sales returns  226   265   (243)  248 
Year Ended December 31, 2007                
Allowance for doubtful accounts  1,357   (264)  (60)  1,033 
Allowance for sales returns  248      (61)  187 


F-15


 
BIOLASE TECHNOLOGY, INC.
 
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
         
  December 31, 
INVENTORY, NET (in thousands):
 2007  2006 
 
Raw materials $3,194  $2,554 
Work-in-process  784   663 
Finished goods  3,649   4,557 
         
Inventory, net $7,627  $7,774 
         
provisions of FAS 161 will materially impact our consolidated financial position and consolidated results of operations.
In June 2008, the FASB issued Staff PositionEITF 03-6-1,Determining Whether Instruments Granted in Share Based Payment Transactions are Participating Securities(“FSPEITF 03-6-1”). FSPEITF 03-6-1 addresses whether instruments granted in share-based payment transactions are participating securities prior to vesting and, therefore, need to be included in the earning allocation in computing earnings per share under the two-class method described in SFAS No. 128Earnings Per Share. FSPEITF 03-6-1 is effective for financial statements issued for fiscal years beginning after December 18, 2008, and interim periods within those years. All prior-period earnings per share data presented shall be adjusted retrospectively. The adoption of FSPEITF 03-6-1 effective January 1, 2009 will not have a material impact on our financial statements.
In April 2008, the FASB issued Staff PositionNo. 142-3,Determination of the Useful Life of Intangible Assets(“FSP 142-3”).FSP 142-3 amends the factors that should be considered in developing renewal or extension assumptions used to determine the useful life of a recognized intangible asset under SFAS 142.FSP 142-3 is effective for fiscal years beginning after December 15, 2008.FSP 142-3 will have an impact on our accounting for business combinations completed after January 1, 2009.
NOTE 3 — SUPPLEMENTARY BALANCE SHEET INFORMATION
         
  December 31, 
ACCOUNTS RECEIVABLE (in thousands):
 2008  2007 
 
Components of accounts receivable, net of allowances are as follows:        
Trade $2,914  $10,483 
Royalties  41   62 
WCLI co-sponsorship  92   300 
License fee  250   250 
Training and service receivable  327    
Other  134   171 
         
Total receivables $3,758  $11,266 
         
Following are the changes in the allowance for doubtful accounts and the allowance for sales returns during the years ended 2008, 2007 and 2006 (in thousands):
                 
     Charges
       
  Balance at
  (Reversals)
  Write-offs
  Balance at
 
  Beginning
  to Cost or
  and
  End of
 
  of Year  Expenses  returns  Year 
 
Year Ended December 31, 2006                
Allowance for doubtful accounts  420   941   (4)  1,357 
Allowance for sales returns  226   265   (243)  248 
Year Ended December 31, 2007                
Allowance for doubtful accounts  1,357   (264)  (60)  1,033 
Allowance for sales returns  248      (61)  187 
Year Ended December 31, 2008                
Allowance for doubtful accounts  1,033   (68)  (439)  526 
Allowance for sales returns  187         187 


F-16


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
         
  December 31, 
INVENTORY, NET (in thousands):
 2008  2007 
 
Raw materials $4,981  $3,194 
Work-in-process  1,472   784 
Finished goods  5,957   3,649 
         
Inventory, net $12,410  $7,627 
         
 
Inventory is net of the provision for excess and obsolete inventory of $724,000$828,000 and $683,000$724,000 at December 31, 20072008 and 2006,2007, respectively.
 
Following are the changes in the reserve for excess and obsolete inventory during the years 2008, 2007 2006 and 20052006 (in thousands):
 
     
  Reserve for
 
  Excess and
 
  Obsolete
 
  Inventory 
 
Balances at December 31, 2004 $687 
Charged to operations  711 
Write-offs  (825)
     
Balances at December 31, 2005  573 
Charged to operations  140 
Write-offs  (30)
     
Balances at December 31, 2006  683 
Charged to operations  89 
Write-offs  (48)
     
Balances at December 31, 2007 $724 
     
Reserve for
Excess and
Obsolete
Inventory
Balances at December 31, 2005$573
Charged to operations140
Write-offs(30)
Balances at December 31, 2006683
Charged to operations89
Write-offs(48)
Balances at December 31, 2007724
Charged to operations104
Write-offs
Balances at December 31, 2008$828
 
Effective January 1, 2006, we adopted FAS 151,Inventory Costs — An Amendment of ARB No. 43, Chapter 4 (“FAS 151”), which requires that abnormal amounts of idle facility expenses, freight, handling costs and wasted material be recognized as current period charges. FAS 151 also requires that the allocation of the fixed production overhead be based on the normal capacity of the production facilities. The adoption of this standard on our consolidated financial results of operations was immaterial.
 
                
 December 31,  December 31, 
PROPERTY, PLANT AND EQUIPMENT, NET (in thousands):
 2007 2006  2008 2007 
Land $352  $315  $268  $352 
Building  967   867   411   967 
Leasehold improvements  921   938   919   921 
Equipment and computers  4,790   4,436   5,674   4,790 
Furniture and fixtures  1,015   934   1,027   1,015 
Construction in progress  44   62   53   44 
          
  8,089   7,552   8,352   8,089 
Accumulated depreciation and amortization  (4,049)  (2,701)  (5,312)  (4,049)
          
Property, plant and equipment, net $4,040  $4,851  $3,040  $4,040 
          

F-16F-17


 
BIOLASE TECHNOLOGY, INC.
 
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
In connection with our move to a new leased facility in April 2006, leasehold improvements include $536,000 (net of a refund received from our landlord in June 2007) of tenant improvements that were paid by the landlord in connection with the facility lease during 2006.
 
                
 December 31,  December 31, 
ACCRUED LIABILITIES (in thousands):
 2007 2006  2008 2007 
Payroll and benefits $3,297  $2,584  $1,844  $3,297 
Warranty  1,987   2,398   2,612   1,987 
Sales tax  171   179   11   171 
Deferred rent credit  112   112   112   112 
Accrued professional services  1,410   1,055   771   1,410 
Accrued insurance premium  1,045   890   732   1,045 
Other  1,409   1,342   2,173   1,409 
          
Accrued liabilities $9,431  $8,560  $8,255  $9,431 
          
 
                
 December 31,  December 31, 
DEFERRED REVENUE (in thousands):
 2007 2006  2008 2007 
License fee from Henry Schein, Inc. — unamortized portion $2,778  $4,444  $1,111  $2,778 
License fee from Procter & Gamble — unamortized portion  1,500   3,000      1,500 
Royalty advances from Procter & Gamble  1,125      1,875   1,125 
Undelivered elements (training, installation and product) and other  1,329   818   731   1,329 
Extended warranty contracts  1,153   1,447   761   1,153 
          
Total Deferred Revenue  7,885   9,709   4,478   7,885 
          
Less Long-Term amounts:                
License fee from Henry Schein, Inc.   (1,111)  (2,778)     (1,111)
License fee from Procter & Gamble     (1,500)
Royalty advances from Procter & Gamble  (1,125)     (1,875)  (1,125)
          
Total Deferred Revenue — Long Term  (2,236)  (4,278)  (1,875)  (2,236)
          
Total Deferred Revenue — Current $5,649  $5,431  $2,603  $5,649 
          
 
On August 8, 2006, we entered into a License and Distribution Agreement with Henry Schein, Inc., or HSIC, a large distributor of healthcare products to office-based practitioners, pursuant to which we granted HSIC the exclusive right to distribute our complete line of dental laser systems, accessories and services in the United States and Canada. Concurrent with the execution of the Agreement, HSIC paid an upfront license fee of $5.0 million. The Agreement has an initial term of three years, following which HSIC has the option to extend the Agreement for an additional three-year period under certain circumstances, including its satisfaction of the minimum purchase requirements during the full three-year period, and for an additional license fee of $5.0 million.period. We are amortizing the initial $5.0 million payment toLicense Fees and Royalty Revenueson a straight-line basis over the three-year term of the agreement. For the years ended December 31, 2008, 2007 and 2006, we recognized $1.7 million, $1.7 million and $556,000, respectively, of the license fee.
 
Under the agreement, HSIC is obligated to meet certain minimum purchase requirements and is entitled to receive incentive payments if certain purchase targets are achieved. If HSIC has not met the minimum purchase requirements at the midpoint of each of the first two three-year periods, we will have the option, upon repayment of a portion of the license fee, to (i) shorten the remaining term of the agreement to one year, (ii) grant distribution rights held by HSIC to other persons (or distribute products itself), (iii) reduce certain discounts on products given to HSIC under the agreement and (iv) cease paying future incentive payments. We


F-17F-18


 
BIOLASE TECHNOLOGY, INC.
 
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
discounts on products given to HSIC under the agreement and (iv) cease paying future incentive payments. We maintain the right to grant certain intellectual property rights to third parties, but by doing so may incur the obligation to refund a portion of the upfront license fee to HSIC.
 
On May 9, 2007, we entered intoAddendum 1 to License and Distribution Agreementwith HSIC, which addendum is effective as of April 1, 2007 and modifies the License and Distribution Agreement entered into with HSIC on August 8, 2006, to add the terms and conditions under which HSIC has the exclusive right to distribute our newezlasediode dental laser system in the United States and Canada. In the Addendum, separate minimum purchase requirements are established for theezlasesystem. If HSIC has not met the minimum purchase requirement for any12-month period ending on March 31, we will have the option, upon 30 days written notice, to (i) convertezlase distribution rights to a non-exclusive basis for a minimum period of one year, after which period we would have the option to withdrawezlasedistribution rights, and (ii) reduce the distributor discount onezlaseproducts.
 
On March 3, 2008, we entered into a second addendum to the HSIC agreement that modifies certain terms of the initial agreement as amended. Pursuant to amendment 2 to the agreement, HSIC is obligated to meet certain minimum purchase requirements and is entitled to receive incentive payments if certain purchase targets are achieved. If HSIC has not met the minimum purchase requirements, we will have the option to (i) shorten the remaining term of the Agreement to one year, (ii) grant distribution rights held by HSIC to other persons (or distribute products ourselves), (iii) reduce certain discounts on products given to HSIC under the Agreement and (iv) cease paying future incentive payments. Additionally, under certain circumstances, if HSIC has not met the minimum purchase requirements, we have the right to purchase back the exclusive distributor rights granted to HSIC under the agreement. We also agreed to actively promote Henry Schein Financial Services as our exclusive leasing and financing partner.
 
On December 23, 2008, we entered into a letter agreement with HSIC amending the initial term of the License and Distribution Agreement to December 31, 2010.
On February 27, 2009, we entered into a letter agreement with HSIC amending the term of the License and Distribution Agreement through March 31, 2010. (See Liquidity and Capital Resources) This amendment includes certain minimum purchase requirements through the term of the agreement. HSIC also has the option to extend the term of the Agreement for two additional one-year terms based on certain minimum purchase requirements. In addition, HSIC will become our distributor in certain international countries including Germany, Spain, Australia and New Zealand and will have first right of refusal in new international markets that we are interested in entering.
On June 29, 2006, we received a one-time payment from The Procter & Gamble Company, or P&G, of $3.0 million for a license to certain of our patents pursuant to a binding letter agreement, subsequently replaced by a definitive agreement effective January 24, 2007, which was recorded as deferred revenue when received. In the event of a material uncured breach of the definitive agreement by us, we could be required to refund certain payments made to us under the agreement, including the $3.0 million payment. The license fee from P&G is being amortized over a two-year period commencing January 25, 2007. DuringIn each of the fiscal yearyears ended December 31, 2008 and 2007, $1.5 million of the license fee was recognized in license fees and royalty revenue. Additionally, P&G is required to make quarterly payments to us in the amount of $250,000, beginning with a payment for the third quarter of 2006 and continuing until the first product under the agreement is shipped by P&G for large-scale commercial distribution in the United States. Seventy-five percent of each $250,000 payment is treated as prepaid royalties and will be credited against royalty payments owed to us, and the remainder is credited to revenue and represents services provided by BIOLASE to P&G. For the yearyears ended December 31, 2008 and 2007, $250,000 and $375,000 of the payments received waswere recognized inlicense fees and royalty revenue.
 
NOTE 5 —INTANGIBLE ASSETS AND GOODWILL
NOTE 4 — INTANGIBLE ASSETS AND GOODWILL
 
In accordance with FAS 142, Goodwilland Other Intangible Assets, goodwill and other intangible assets with indefinite lives are not subject to amortization but are tested for impairment annually or whenever events


F-19


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
or changes in circumstances indicate that the asset might be impaired. We conducted our annual impairment analysis of our goodwill and trade names as of June 30, 20072008 and concluded there had not been any impairment. SubsequentDue to the decline in our stock price and market capitalization during the fourth quarter of 2008 caused by adverse equity market conditions and the general economic environment, we updated our impairment analysis. We concluded that there had not been any impairment. However, we will closely monitor our stock price and market capitalization and will perform such analysis on a quarterly basis, if needed. If our stock price and market capitalization continue to decline, we may need to impair our goodwill and other intangible assets. In the quarter ended December 31, 2008, we completed our branding strategy and determined that it was likely that the Diolase trade name use would not be significant in the future. Therefore we wrote off the remaining $232,000 related to the trade name. Other than this impairment, subsequent to June 30, 2007,2008, we believe that no triggering events occurred that would have a material effect on the value of thesethe remaining assets.
 
Intangible assets with finite lives are subject to amortization, and any impairment is determined in accordance with FAS 144,Accounting for the Impairment or Disposal of Long-Lived Assets. We believe no event has occurred that would trigger an impairment of these intangible assets in 20072008 and 2006.2007. We recorded amortization expense for the years ended December 31, 2008, 2007 and 2006 of $363,000, $361,000 and 2005 of $361,000, $362,000, and


F-18


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
$361,000, respectively. Estimated intangible asset amortization expense (based on existing intangible assets) for the years ending December 31, 2008, 2009, 2010, 2011, 2012 and 20122013 is $363,000, $141,000, $130,000, $130,000, $130,000 and $130,000,$62,000, respectively, and $82,000$20,000 thereafter. Other intangible assets consist of an acquired customer list and a non-compete agreement.
 
The following table presents details of our intangible assets, related accumulated amortization and goodwill (in thousands):
 
                                                                
 As of December 31, 2007 As of December 31, 2006  As of December 31, 2008 As of December 31, 2007 
   Accumulated
       Accumulated
        Accumulated
       Accumulated
     
 Gross Amortization Impairment Net Gross Amortization Impairment Net  Gross Amortization Impairment Net Gross Amortization Impairment Net 
Patents (4-10 years) $1,914  $(1,038) $  $876  $1,814  $(786) $  $1,028  $1,914  $(1,301) $  $613  $1,914  $(1,038) $  $876 
Trademarks (6 years)  69   (69)        69   (69)        69   (69)        69   (69)      
Trade names (Indefinite life)  979      (747)  232   979      (747)  232   979      (979)     979      (747)  232 
Other (4 to 6 years)  593   (493)     100   593   (384)     209   593   (593)        593   (493)     100 
                                  
Total $3,555  $(1,600) $(747) $1,208  $3,455  $(1,239) $(747) $1,469  $3,555  $(1,963) $(979) $613  $3,555  $(1,600) $(747) $1,208 
                                  
Goodwill (Indefinite life) $2,926          $2,926  $2,926          $2,926  $2,926          $2,926  $2,926          $2,926 
                  
 
NOTE 6 —BANK LINE OF CREDIT AND DEBT
NOTE 5 — BANK LINE OF CREDIT AND DEBT
 
On September 28, 2006, we entered into a Loan and Security Agreement (“Loan Agreement”) with Comerica Bank (the “Lender”) which replaced the loan agreement previously held with Bank of the West (“BOW”). Under the Loan Agreement, the Lender agreed to extend a revolving loan (the “Revolving Line”) to us in the maximum principal amount of $10.0 million. Advances under the Revolving Line maycould not exceed the lesser of $10.0 million or the Borrowing Base (80% of eligible accounts receivable and 35% of eligible inventory), less any amounts outstanding under letters of credit or foreign exchange contract reserves. Notwithstanding the foregoing, advances of up to $6.0 million maycould be made without regard to the Borrowing Base. On October 5, 2007, we entered into an Amendment to the Loan Agreement which extendsextended the agreement for an additional year. The entire unpaid principal amount plus any accrued but unpaid interest and all other amounts due under the Loan Agreement arewould have been due and payable in full on September 28, 2009 (the “Maturity Date”), but can becould have been extended by us for an additional year upon Lender approval. Our obligations under the Loan Agreement bearbeared interest on the outstanding daily balance thereof at one of the following rates, to be selected by us: (i) LIBOR plus 2.50%, or (ii) prime rate, as announced by the


F-20


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
Lender, plus 0.25%. As security for the payment and performance of our obligations under the Loan Agreement, we granted the Lender a first priority security interest in existing and later-acquired Collateral (as defined in the Loan Agreement, and which excludes intellectual property). Certain subsidiaries of ours had entered into unconditional guaranties, dated as of September 28, 2006, pursuant to which such subsidiaries had guaranteed the payment and performance of our obligations under the Loan Agreement.
 
The Loan Agreement requiresrequired compliance with certain financial covenants, including: (i) minimum effective tangible net worth; (ii) maximum leverage ratio; (iii) minimum cash amount at Lender of $6.0 million; and (iv) minimum liquidity ratio. The Loan Agreement also containscontained covenants that requirerequired Lender’s prior written consent for us, among other things, to: (i) transfer any part of its business or property; (ii) make any changes in our location or name, or replace our CEO or CFO; (iii) consummate mergers or acquisitions; (iv) incur liens; or, (v) pay dividends or repurchase stock. The Loan Agreement containscontained customary events of default, any one of which willwould result in the right of the Lender to, among other things, accelerate all obligations under the Loan Agreement, set-off obligations under the Loan Agreement against any balances or deposits of ours held by the bank, or sell the Collateral. We have obtained the Lender’s consent for the termination of our former CEO in November 2007, the resignation of our former CFO in January 2008, the appointment of our successor CEO in January 2008 and the appointment of our interim CFO in February 2008 and were in compliance with all other covenants as
As of December 31, 2007.


F-19


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
2008, $5.4 million was outstanding under the Loan Agreement at an interest rate of 3.50% (the Lender’s announced prime rate as of that date plus 0.25%). As of December 31, 2007, $3.6 million was outstanding under the Loan Agreement at an interest rate of 7.5% (the Lender’s announced prime rate as of that date plus 0.25%). As of December 31, 2006, no amounts were outstanding
On January 30, 2009, we delivered a compliance certificate to Comerica which set forth non-compliance with certain covenants under the Loan Agreement and the Lender waived the minimum cash amount at Lender covenant of $6.0 million as of that date.
CertainDecember 31, 2008. The loan agreement was terminated on February 5, 2009 and all outstanding balances were repaid in full with cash available on hand, and under the terms of the Loan Agreement and related note, we and certain of our subsidiaries of ours have entered into unconditional guaranties, dated as of September 28, 2006, pursuant to which such subsidiaries have guaranteed the payment and performancesatisfied all of our obligations under the Loan Agreement.
 
Prior to the Comerica Loan and Security Agreement,In December 2008, we hadfinanced approximately $804,000 of insurance premiums payable in eleven equal monthly installments of approximately $75,000 each, including a $10.0 million credit facility with a bank which terminated on September 28, 2006. At December 31, 2005, $5.0 million was outstanding on this credit facility. Borrowings under this facility bore interest at LIBOR plus 2.25% for minimum borrowing amountsfinance charge of $500,000 and with two business days notice or at a variable rate equivalent to prime rate for amounts below $500,000 or with less than two business days notice, and were payable on demand upon expiration of the facility. All borrowings during the year ended December 31, 2005 were at prime rate.
5.65%. In December 2007, we financed approximately $1.1 million of insurance premiums payable in eleven equal monthly installments of approximately $107,000 each, including a finance charge of 5.39%. In December 2006, we financed $890,000 of insurance premiums payable in ten equal monthly installments of approximately $91,000 each, including a finance charge of 5.89%.
 
NOTE 7 —INCOME TAXES
NOTE 6 — INCOME TAXES
 
The following table presents the current and deferred provision (benefit) for income taxes for the years ended December 31 (in thousands):
 
                        
 2007 2006 2005  2008 2007 2006 
Current:
                        
Federal $39  $1  $26  $(25) $39  $1 
State  7   3   17   (50)  7   3 
Foreign  60   124   185   137   60   124 
              
  106   128   228   62   106   128 
              
Deferred:
                        
Federal  64   64   35   37   64   64 
State  8   5   6   (4)  8   5 
Foreign  (15)  (35)     26   (15)  (35)
              
  57   34   41   59   57   34 
              
 $163  $162  $269  $121  $163  $162 
              


F-20F-21


 
BIOLASE TECHNOLOGY, INC.
 
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
The provision for income taxes differs from the amount that would result from applying the federal statutory rate as follows for the years ended December 31:
 
                        
 2007 2006 2005  2008 2007 2006 
Statutory regular federal income tax rate  (34.0)%  (34.0)%  (34.0)%  (34.0)%  (34.0)%  (34.0)%
Change in valuation allowance  1.9%  (18.8)%  35.5%  16.9%  1.9%  (18.8)%
Tax return to prior year provision adjustments  13.2%  4.2%  2.2%  0.1%  13.2%  4.2%
Expiration of Federal NOL  11.4%        19.5%  11.4%   
Reduction of NOL attributes for FIN 48  4.2%        2.7%  4.2%   
State tax benefit (net of federal effect)  (1.1)%  13.6%  (3.3)%  0.4%  (1.1)%  13.6%
Research credits  (1.9)%  (2.1)%  (0.6)%  (0.5)%  (1.9)%  (2.1)%
Foreign amounts with no tax benefit  4.2%     1.0%  (6.0)%  4.2%   
Non-deductible expenses  2.4%  3.3%  (0.1)%  1.4%  2.4%  3.3%
Stock option-no tax benefit  0.7%  (8.7)%     0.8%  0.7%  (8.7)%
Derecognition of NOL for FAS 123R     45.6%           45.6%
Other  1.3%  0.5%  0.9%     1.3%  0.5%
              
Total  2.3%  3.6%  1.6%  1.3%  2.3%  3.6%
              
 
The components of the deferred income tax assets and liabilities as of December 31 (in thousands):
 
                
 2007 2006  2008 2007 
Capitalized intangible assets for tax purposes $2,681  $3,245  $2,153  $2,681 
Reserves not currently deductible  1,982   2,163   2,361   1,982 
Deferred revenue  2,178      872   2,178 
Stock options  1,038   612   1,613   1,038 
Income tax credits  734   1,022   757   734 
Inventory  649   628   1,072   649 
Property and equipment  49      213   49 
Other comprehensive income  (20)  (43)  63    
Deferred intercompany gain     1,292 
Unrealized gain on foreign currency  7    
State taxes  2   1 
Net operating losses  16,976   18,597   18,428   16,976 
          
Total deferred tax assets  26,267   27,516   27,541   26,288 
Valuation allowance  (25,783)  (26,634)  (27,442)  (25,783)
          
Net deferred tax assets  484   882   99   505 
     
Capitalized intangible assets  (342)  (271)  (376)  (342)
Unrealized gain (loss) on foreign currency  (266)   
Property and equipment     (385)
State taxes  1   1 
Unrealized loss on foreign currency     (266)
Other comprehensive income     (20)
Other  (169)  (463)  (70)  (169)
          
Total deferred tax liabilities  (776)  (1,118)  (446)  (797)
          
Net deferred tax liabilities $(292) $(236) $(347) $(292)
          
 
Based upon our operating losses during 20072008 and 2006,2007, and the available evidence, management determined that it is more likely than not that the deferred tax assets as of December 31, 20072008 will not be


F-21F-22


 
BIOLASE TECHNOLOGY, INC.
 
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
realized, excluding a portion of the foreign deferred tax asset in the amount of $50,000.$29,000. Consequently, we have a valuation allowance against our net deferred tax assets, excluding the foreign operations, in the amount of $25.8$27.4 million as of December 31, 2007.2008. In this determination, we considered factors such as our earnings history, future projected earnings and tax planning strategies. If sufficient evidence of our ability to generate sufficient future taxable income tax benefits becomes apparent, we may reduce our valuation allowance, resulting in tax benefits in our statement of operations and in additionalpaid-in-capital. Management evaluates the potential realization of our deferred tax assets and assesses the need for reducing the valuation allowance periodically.
 
In addition to the operating loss carryforwards included in the deferred tax asset and liability schedule above are excess tax deductions relating to stock options that have not been realized. When the benefit of the operating losses containing these excess tax deductions are realized, the benefit will not affect earnings, but rather additionalpaid-in-capital. As of December 31, 2007,2008, the cumulative unrealized excess tax deductions amounted to $6.4$6.2 million. These amounts have been excluded from the operating loss carryforward as a result of FAS 123R. To the extent that such excess tax deductions are realized in the future by virtue of reducing income taxes payable, we would expect to increase additionalpaid-in-capital by approximately $2.4$2.3 million. We follow the FAS 109 ordering rules to determine when such operating loss has been realized.
 
As of December 31, 2007,2008, we had net operating loss carryforwards for federal and state purposes of approximately $55.8$59.5 million and $23.2$27.6 million, respectively, which begin to expire in 2008.2009. The utilization of NOL and credit carryforwards may be limited under the provisions of the Internal Revenue Code Section 382 and similar state provisions. Section 382 of the Internal Revenue Code of 1986 generally imposes an annual limitation on the amount of NOL carryforwards that may be used to offset taxable income where a corporation has undergone significant changes in stock ownership. During the year ended December 31, 2006, we completed an analysis to determine the potential applicability of any annual limitations imposed by Section 382. Based on our analysis we believe that as ofat December 31, 2007, all of the approximately $55.8 million of federal NOL carryforwards is available to offset taxable income generated in future years.2006, there was no significant Section 382 limitation. As of December 31, 2007,2008, we had research and development tax credit carryforwards for federal and state purposes of approximately $804,000$835,000 and $447,000,$440,000, respectively, which will begin to expire in 2011 for federal purposes and will carryforward indefinitely for state purposes. However,An updated analysis will be required at the time we begin utilization of any future ownership change qualifying undernet operating losses to determine if there is a Section 382 may limit our ability to use remaining NOL and credit carryforwards.limitation.
 
On January 1, 2007, we adopted the provisions of FIN 48. As a result of applying the provisions of FIN 48, we recognized a $156,000 increase in accumulated deficit as of January 1, 2007, of which $32,000 represents estimated interest and penalties.
 
The following table summarizes the activity related to our unrecognized tax benefits (in thousands):
 
        
Balance at January 1, 2007 $124  $124 
Additions for tax positions related to the current year  39   39 
Additions for tax positions of prior years      
Reductions for tax positions of prior years      
Settlements      
      
Balance at December 31, 2007 $163  $163 
Additions for tax positions related to the current year  17 
Lapse of statute of limitations  (72)
      
Balance at December 31, 2008 $108 
   
 
Included in the balance at December 31, 2007,2008, are $163,000$108,000 of tax positions, which if recognized, would increase our annual effective tax rate. We also accrued potential penalties of $4,000$2,000 and a reduction of interest expense of $4,000$5,000 during 20072008 related to these unrecognized tax benefits and in total, as of December 31, 2007,2008, we have recorded a liability for potential penalties and interest of $18,000 and $14,000, respectively. We do not expect our unrecognized tax benefits to change significantly over the next 12 months.


F-22F-23


 
BIOLASE TECHNOLOGY, INC.
 
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
recorded a liability for potential penalties and interest of $20,000 and $19,000, respectively. We do not expect our unrecognized tax benefits to change significantly over the next 12 months.
 
The federal and state net operating loss and credit carryforwards per the income tax returns filed included uncertain tax positions taken in prior years. Due to the application of FIN 48, they are larger than the net operating loss and credits recognized for financial statement purposes.
 
We file U.S., state and foreign income tax returns in jurisdictions with varying statutes of limitations. The 2004 through 20072008 tax years generally remain subject to examination by federal and most state tax authorities. In foreign jurisdictions, the 20022003 through 20072008 tax years remain subject to examination by their respective tax authorities.
 
U.S. income taxes were provided for all the distributed earnings for our Australia subsidiary. U.S. income taxes were provided for all distributed earnings for our Germany subsidiary through December 31, 2007. U.S. income taxes and Germany subsidiaries.withholding taxes were not provided for undistributed earnings from our German subsidiary for the year ended December 31, 2008. U.S. income taxes and foreign withholding taxes were not provided for undistributed earnings from our New Zealand and Spain subsidiaries. We are currently restructuring our international operations and intend to reinvest thesetheir earnings indefinitely in operations outsideuntil such time that a decision is made to liquidate the U.S.foreign subsidiaries.
 
NOTE 8 —COMMITMENTS AND CONTINGENCIES
NOTE 7 — COMMITMENTS AND CONTINGENCIES
 
Leases
 
In January 2006, we entered into a five-year lease for our 57,000 square foot corporate headquarters and manufacturing facility located at 4 Cromwell, Irvine, California with initial monthly installments of $38,692 and annual adjustments over the lease term. We have projected rent expense during the five-year lease and are recognizing rent expense on a straight line basis with the difference between rent expense and rent paid recorded to deferred rent. These amounts are reflected in the commitments as of December 31, 20072008 listed below. We also lease certain office equipment and automobiles under operating lease arrangements.
 
Future minimum rental commitments under operating leases with non-cancelable terms greater than one year for each of the years ending December 31 are as follows (in thousands):
 
        
2008 $582 
2009  575  $519 
2010  576   579 
2011  200   203 
2012   
Thereafter      
      
Total future minimum lease obligations $1,933  $1,301 
      
 
Rent expense was $980,000, $943,000 $877,000 and $691,000$877,000 for the years ended December 31, 2008, 2007 2006 and 2005,2006, respectively.
 
Licensed patent rights
 
In February 2005, we purchased a license to use certain patent rights for technology in the field of presbyopia totaling $2.0 million including related transaction costs, from SurgiLight, Inc. The entire consideration, including transaction costs, has been expensed as in-process research and development. In 2006, additional consideration totaling $100,000 was expensed as incurred with the remaining $100,000 to be expensed through 2010, in accordance with FAS 2,Accounting for Research and Development Costs. Of this, $25,000 was recognized asengineering and developmentexpense in fiscal 2007.
Employee arrangements and other compensation
Termination of President and Chief Executive Officer/Appointment of Interim President and Chief Executive Officer
Effective November 5, 2007, we terminated the employment of Jeffrey W. Jones, our President and Chief Executive Officer. On January 30, 2008, we entered into a Separation and General Release Agreement with


F-23


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
Mr. Jones relating to the termination of his employment. The agreement superseded the Employment Agreement we had with Mr. Jones dated December 29, 2005. Pursuant to the termseach of the agreement, we agreed to pay Mr. Jones a severance amount of $374,822fiscal years ended 2008 and pay COBRA premiums on his behalf of $1,712 per month for the period from December 2007 through February 2008. The severance amount was subsequently paid on February 2, 2008. The costs associated with Mr. Jones’ termination were recognized in the fourth quarter of 2007 as part ofrestructuring charge included in the consolidated statement of operations. Mr. Jones also agreed to the partial cancellation of a fully vested option to purchase 100,000 shares of our common stock that were part of a prior option to purchase 200,000 shares of common stock granted on December 12, 2005 and that would have otherwise expired on November 5, 2009.
Following the termination of Mr. Jones, we appointed Federico Pignatelli, one of our current directors and Chairman Emeritus, as Interim President and Chief Executive Officer. Mr. Pignatelli subsequently resigned his position as Interim Chief Executive Officer in January 2008 following the appointment of Jake St. Philip as our Chief Executive Officer. Mr. Pignatelli will remain our President in 2008 for which he will receive a salary of $150,000.
Termination of Executive Vice President, Global Sales and Marketing
Effective November 5, 2007, we terminated the employment of Keith G. Bateman, our Executive Vice President, Global Sales and Marketing. On January 22, 2008, we entered into a Separation and General Release Agreement with Mr. Bateman relating to the termination of his employment. Pursuant to the terms of the agreement, we agreed to pay Mr. Bateman a severance amount of $187,263 and pay COBRA premiums on his behalf of $1,311 per month for the period from December 2007 through May 2008. The severance benefits are in lieu of any compensation or benefits provided under Mr. Bateman’s employment agreement. The severance amount was subsequently paid on January 31, 2008. The costs associated with Mr. Bateman’s termination were recognized in the fourth quarter of 2007 as part ofrestructuring chargeincluded in the consolidated statement of operations.
Following the termination of Mr. Bateman, James R. Largent, one of our current directors, performed certain sales and marketing executive services. For such services, we paid Mr. Largent $25,000, which was recognized in the fourth quarter of 2007 asgeneral and administrative expenses.
Appointment of Successor Chief Executive Officer
On January 2, 2008, we hired Jake St. Philip as our Chief Executive Officer. Under the terms of his employment agreement, Mr. St. Philip is to receive an annual salary of $350,000 and is eligible for an annual performance bonus of up to $225,000. In addition, Mr. St. Philip was granted a nonqualified stock option to purchase 450,000 shares of our common stock at an exercise price of $2.89, the fair market value of our stock on the grant date, January 7, 2008. The stock option will vest and become exercisable in twelve equal quarterly installments, commencing on March 31, 2008, subject to Mr. St. Philip’s continued employment with us. We have also agreed to provide Mr. St. Philip with an apartment in Irvine, Ca.
If his employment is terminated other than for cause or if he resigns for good reason, Mr. St. Philip will be entitled to receive severance benefits equal to: one year of annual base salary; the full amount of his annual performance bonus target for the calendar year in which the effective date of termination occurs; twelve months of paid COBRA premiums under our medical and dental benefit plans; a $3,000 lump sum cash payment; and payment of his premiums under our group life insurance, accidental death and dismemberment and disability benefit plans during the twelve month period following the effective date of termination. Furthermore, if his employment is terminated without cause or he resigns for good reason and such termination occurs within twelve months of a change in control of us, Mr. St. Philip will be entitled to receive the severance benefits summarized above and Mr. St. Philip’s stock granted upon his hiring shall become fully vested and exercisable on the first business day that is at least 60 days after the effective date of termination.2007.


F-24


 
BIOLASE TECHNOLOGY, INC.
 
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
ResignationEmployee arrangements and other compensation
In January 2008, Jake St. Philip was appointed our Chief Executive Officer. On March 5, 2009, Mr. St. Philip resigned as our Chief Executive Officer employment and as a director of our Board of Directors. On March 10, 2009, we entered into a Separation and General Release Agreement, or Agreement, with Mr. St. Philip. Pursuant to the Agreement, we agreed to pay Mr. St. Philip a severance payment of $350,000 of which half will be paid on May 9, 2009 and half will be paid in twelve consecutive equal monthly installments commencing on June 1, 2009. In addition, we agreed to pay COBRA premiums on his behalf for twelve months. The Agreement superseded the Employment Agreement we had with Mr. St. Philip dated January 2, 2008.
On April 30, 2008, we appointed David M. Mulder as Chief Financial Officer/AppointmentOfficer. Mr. Mulder has an employment agreement that obligate us to pay him severance benefits under certain conditions, including termination without cause and resignation with good reason. In the event Mr. Mulder is terminated by us without cause or he resigns with good reason, the total severance benefits payable would be approximately $255,000 based on compensation in effect as of April 30, 2008, the date Mr. Mulder was appointed as our current Chief Financial Officer. On March 5, 2009, Mr. Mulder was appointed Chief Executive Officer and appointed to our Board of Directors.
On March 10, 2009, our Vice President and Corporate Controller, Frederick M. Capallo, was appointed Interim Chief Financial OfficerOfficer.
 
Effective January 2, 2008, our Executive Vice President, Chief Financial Officer and Secretary, Richard L. Harrison, resigned to pursue other interests. Following Mr. Harrison’s resignation, we appointed Frederick M. Capallo, our Corporate Controller, as Interim Chief Financial Officer. In addition to his compensation as Controller, Mr. Capallo received a $15,000 bonus and an option to purchase 15,000 shares of our common stock at an exercise price of $4.00 per share as consideration for his service as Interim Chief Financial Officer. The option was granted on January 30, 2008 and vests in full on the one year anniversary of the grant.
Other Compensation
CertainMulder, certain other executive officers and members of management are entitled to severance benefits payable upon termination following a change in control. In addition to Mr. St. Philip, the total severance benefits payable to such employeescontrol, which would be approximately $2.2 million based on compensation in effect as of December 31, 2007.approximate $2.6 million. Also, we have agreements with certain employees to pay bonuses based on targeted performance.
In June 2005, our Board of Directors resolved to make a one-time payment of $90,000 to a director, Mr. George d’Arbeloff, in connection with his service as audit committee chair and the extraordinary efforts he contributed in connection with the 2004 audit (and contemporaneous restatement of 2002 and 2003 financial statements). This amount was recorded as a general and administrative expense in the third quarter of 2005.performance criteria.
 
Litigation
In August 2004, we and certain of our officers were named as defendants in several putative shareholder class action lawsuits filed in the United States District Court for the Central District of California. The complaints purported to seek unspecified damages on behalf of an alleged class of persons who purchased our common stock between October 29, 2003 and July 16, 2004. The complaints allege that we and our officers violated federal securities laws by failing to disclose material information about the demand for our products and the fact that we would not achieve the alleged forecasted growth. The claimed misrepresentations include certain statements in our press releases and the registration statement we filed in connection with our public offering of common stock in March 2004. In January 2006, defendants’ motion to dismiss the second amended consolidated class action complaint was granted and the action was dismissed, with leave to further amend, by the order of the Honorable David O. Carter, United States District Judge for the Central District of California. On March 10, 2006, the plaintiffs filed a third amended complaint. The third amended complaint makes the same allegations regarding violations of the federal securities laws but is limited to an alleged class of investors who purchased or otherwise acquired our common stock pursuant to or traceable to the public offering of our common stock that closed in March 2004. Defendants filed a motion to dismiss that complaint and on July 25, 2006, the Court ruled on the motion, granting the motion on the grounds that lead plaintiffs lack standing, denying the motion on the grounds that the complaint fails to state a claim and allowing plaintiffs to file a fourth amended complaint and a motion to appoint new lead plaintiffs. On August 23, 2006, plaintiffs filed a fourth amended complaint which defendants answered on October 20, 2006. In addition, in August 2004, three stockholders filed derivative lawsuits in the Superior Court in Orange County, California seeking recovery on our behalf and alleging, among other things, breach of fiduciary duty by two officers and by the members of our Board of Directors, who were named as defendants. The cases were consolidated and the plaintiffs in the consolidated derivative action raised claims on our behalf that include alleged misrepresentations in 2003 and 2004 as to the demand for our products, our financial results and future prospects. In both the class action and the derivative suit the parties have entered into settlement agreements, the respective courts have approved the settlements and the lawsuits have been concluded.


F-25


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
On April 20, 2007, the parties entered into a Stipulation of Settlement (the “Derivative Stipulation”) in which they agreed to settle the derivative litigation. Under the Derivative Stipulation, in exchange for a release of all claims against the defendant officers and directors that were or could have been alleged in the complaints in the derivative cases and dismissal of the derivative suit, our directors and officers liability insurance carrier agreed to pay on behalf of the individual defendants $500,000 to or as directed by us (including a $100,000 attorney’s fee to plaintiff) and we have agreed to adopt or maintain certain corporate governance measures described in the Derivative Stipulation. The Derivative Stipulation and a motion for approval of the settlement were filed in the Orange County Superior Court on April 24, 2007. On July 13, 2007, the Court held a hearing on the motion for final approval of the settlement of the derivative action and also for an award of attorneys’ fees and reimbursement of expenses. On July 20, 2007, the Court entered a Final Judgment and Order of Dismissal with Prejudice approving the settlement and the Derivative Stipulation, dismissing the litigation and releasing as to Biolase and all Biolase stockholders all settled derivative claims and barring all stockholders from pursuing the settled derivative claims.
On April 23, 2007, the Court in the federal class action entered an Order preliminarily approving the settlement of the class action, as contained in a Stipulation of Settlement (the “Class Stipulation”) filed with the Court. On August 15, 2007, the Court entered an Order and Final Judgment approving the settlement. Under the Class Stipulation, in exchange for a release of all claims and dismissal of the litigation, our directors and officers liability insurance carrier paid $1,950,000 in cash to fund payments to the class members, net of fees and costs to plaintiffs’ counsel. Such amount included the amount the carrier paid to settle the derivative action as discussed in the preceding paragraph. As a result, we incurred no cost in the settlements. In the settlement agreements, the defendants admitted no wrongdoing.
 
In January 2005, we acquired the intellectual property portfolio of Diodem, LLC, or Diodem, consisting of certain U.S. and international patents of which four were asserted against us, and settled the existing litigation between us and Diodem, for consideration of $3.0 million in cash, 361,664 shares of common stock (valued at the common stock fair market value on the closing date of the transaction for a total of approximately $3.5 million) and a five-year warrant exercisable into 81,037 shares of common stock at an exercise price of $11.06 per share. In addition, 45,208 additional shares of common stock were placed in escrow, to be released to Diodem, if certain criteria specified in the purchase agreement were satisfied in or before July 2006. As of March 31, 2006, we determined that it was probable that these shares of common stock would be released from escrow in or before July 2006. Accordingly, we recorded a patent infringement legal settlement charge of approximately $348,000 in 2006. In July 2006, we released these shares from escrow. The common stock issued, the escrow shares of common stock and the warrant shares had certain registration rights, and a Registration Statement onForm S-3 was filed with the Securities and Exchange Commission, or SEC, to register for sale any of these shares which remained unsold. This Registration Statement became effective on April 17, 2007. The total consideration had an estimated value of approximately $7.4 million including the value of the patents acquired in January 2005. As of December 31, 2004, we accrued approximately $6.4 million for the settlement of the existing litigation with $3.0 million included in current liabilities and $3.4 million recorded as a long-term liability. In January 2005, we recorded an intangible asset of $0.5 million representing the estimated fair value of the intellectual property acquired. The estimated fair value of the patents was determined with the assistance of an independent valuation expert using a relief from royalty and a discounted cash flow methodology. As a result of the acquisition, Diodem immediately withdrew its patent infringement claims against us and the case was formally dismissed on May 31, 2005. We did not pay, and have no obligation to pay, any royalties to Diodem on past or future sales of our products, but we agreed to pay additional consideration if any of the acquired patents held by us are licensed to a third party by a certain date. In order to secure performance by us of these financial obligations, the parties entered into an intellectual property security agreement, pursuant to which, subject to the rights of


F-25


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
existing creditors and the rights of any future creditors to the extent provided in the agreement, we granted Diodem a security interest in all of their rights, title and interest in the royalty patents. In September 2007, Diodem filed a


F-26


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
motion with the United States DistrictU.S.District Court in the Central District of California requesting that the original case be reopened for limited discovery concerning Diodem’s claims that we breached various of our obligations and representations in the settlement agreement and seeking damages in the range of $3.85 million to $5.2 million plus costs and attorneys fees incurred in recovering said alleged damages. The District Court denied Diodem’s motion finding, in part, that if Diodem wishes to pursue claims for breach of the settlement agreement, it must file a new lawsuit for breach of contract. On February 20, 2008, Diodem filed a lawsuit for breach of the settlement agreement in Los Angeles Superior Court, naming us and a wholly-owned subsidiary, BL Acquisition II, Inc. as defendants. The complaint asserts two claims, both alleging breaches of the Agreement. Diodem seeks damages of nonot less than $4.0 million. We intendOn April 28, 2008, together with BL Acquisition II, Inc., we filed demurrers and a motion to vigorously defendstrike that, in essence, requests the court to dismiss Diodem’s claims.complaint. On June 20, 2008 the Court denied the demurrers and the motion and on July 21, 2008 we filed an answer to the complaint denying the allegations. On October 15, 2008 the lawsuit was dismissed with prejudice by Diodem pursuant to a settlement agreement among the parties which resolves all claims in the litigation and provides that we will make four payments to Diodem totaling approximately $950,000 through 2010, of which $85,000 will be paid by our liability insurance carriers. In the settlement agreement, we denied any wrongdoing. The settlement agreement contains confidentiality provisions that limit disclosure of the terms of the settlement except as required by SEC rule or regulation, under GAAP or pursuant to court order or law. Related to this matter, we incurred approximately $1.2 million in charges for the settlement and associated legal fees in the third quarter ended September 30, 2008, which reflects all the settlement payments to be made over the next two years.
 
We determinedNational Laser Technology, Inc, or NLT, buys used dental lasers, predominately those originally sold by Biolase, and resells them to other dentists. On August 19, 2008, NLT brought an action against us in federal court in the fair valueSouthern District of Indiana. NLT alleged that we violated Sections 1 and 2 of the warrants, which totaled $443,000Sherman Act, Section 43(a) of the Lanham Act, Section 17200 et seq. of the California Unfair Competition Act and tortiously interfered with NLT’s business relationships and prospective business advantage. NLT seeks a monetary award of three times the unquantified damages that NLT has allegedly sustained because of our alleged Sherman Act violations, unquantified damages for the rest of the claims, punitive damages and preliminary and permanent injunctive relief. On October 6, 2008, we answered the complaint, asserted several affirmative defenses and filed a counterclaim. We alleged that NLT violated Sections 1114 and 1125(a) of the Lanham Act and Section 17200 et seq. of the California Unfair Competition Act. We seek unquantified damages and a permanent injunction. NLT amended its Complaint on December 23, 2008, to add a claim for conspiracy to monopolize in violation of Section 2 of the Sherman Act; we answered the Amended Complaint on January 15, 2009. We amended our counterclaims on February 19, 2009 to add a claim for federal copyright infringement and to seek associated damages. On October 21, 2008, NLT filed a motion for a preliminary injunction seeking to enjoin us from certain actions that NLT alleged violated section 1 and 2 of the Sherman Act. On November 24, 2008, we filed a motion for preliminary injunction seeking to enjoin NLT from selling modified Biolase lasers or using Biolase’s trademarks. Both motions are currently pending, and oral argument is scheduled for March 23, 2009. On March 10, 2009, we filed a motion to strike one of NLT’s witnesses from testifying at the Black-Scholes model withpreliminary injunction hearing or, in the following assumptions:
Term5 years
Volatility67%
Annual dividend per share$0.00
Risk-free interest rate3.73%
alternative, continuing the hearing. That motion has not been ruled on.
 
On December 19, 2005, we entered into a Vendor Agreement with National Technology Leasing Corporation, or NTLC, in which NTLC was designated as our “Preferred Leasing/Financing Provider.” In September 2006, we gave notice to NTLC of the termination of the Vendor Agreement, and subsequently entered into a financing and distribution agreement with Henry Schein, Inc. On August 26, 2008, NTLC filed a lawsuit against us, Henry Schein, Inc. and a former employee of NTLC in California Superior Court in Placer County. NTLC alleges that we breached the Vendor Agreement by failing to provide the required notice


F-26


BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
of termination and asserts a claim for damages without specifying an amount. On October 10, 2008, we answered the complaint and asserted several affirmative defenses. On March 2, 2009, the lawsuit was dismissed with prejudice by NTLC pursuant to a settlement agreement among the parties which resolves all claims in the litigation and provides that we will make two payments to NTLC totaling approximately $20,000 during the first and second quarters of 2009. In the settlement agreement, we denied any wrongdoing. The warrants and common stock were issued in January 2005.settlement agreement contains confidentiality provisions that limit disclosure of the terms of the settlement except as required by SEC rule or regulation, under GAAP or pursuant to court order or law.
 
From time to time, we are involved in other legal proceedings incidental to our business, but at this time, we are not party to any other litigation that is material to our business.
 
Securities and Exchange Commission InquiryNOTE 8 — STOCKHOLDERS’ EQUITY
Following the restatement of our financial statements in September 2003, we received, in late October 2003, and subsequently in 2003 and 2004, informal requests from the Securities and Exchange Commission, or SEC, to voluntarily provide information relating to the restatement. We have provided information to the SEC and intend to continue to cooperate in responding to the inquiry. In accordance with its normal practice, the SEC has not advised us when its inquiry may be concluded, and we are unable to predict the outcome of this inquiry.
NOTE 9 —STOCKHOLDERS’ EQUITY
 
Preferred Stock
 
The Board of Directors, without further stockholder authorization, may issue from time to time up to 1,000,000 shares of our preferred stock. Of the 1,000,000 shares of preferred stock, 500,000 shares are designated as Series B Junior Participating Cumulative Preferred Stock. None of the preferred stock is outstanding.
 
On December 18, 1998, our Board of Directors adopted a stockholder rights plan under which one preferred stock purchase right was distributed on January 11, 1999 with respect to each share of our common stock outstanding at the close of business on December 31, 1998. The rights provide, among other things, that in the event any person becomes the beneficial owner of 15% or more of our common stock while the rights are outstanding, each right will be exercisable to purchase shares of common stock having a market value equal to two times the then current exercise price of a right (initially $30.00). The rights also provide that, if on or after the occurrence of such event, we are merged into any other corporation or 50% or more of our assets or earning power are sold, each right will be exercisable to purchase common stock of the acquiring corporation having a market value equal to two times the then current exercise price of such stock. The rights will expire on December 31, 2008, unless previously triggered, and are subject to redemption at $0.001 per right at any time prior to the first date upon which they become exercisable to purchase common shares.


F-27


BIOLASE TECHNOLOGY, INC.
The rights had an original expiration date of December 31, 2008, unless previously triggered. On December 19, 2008, the rights plan was amended extending the term to December 31, 2018.
 
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
Common Stock and Stock Purchase Warrants
 
At December 31, 2007,2008, we had 25,967,00026,208,000 shares of common stock issued with 24,003,00024,244,000 shares outstanding. 50,000,000 shares of our common stock are authorized for issuance. We have 1,964,000 shares of common stock in our treasury.
 
In July 2004, our Board of Directors authorized a 1.25 million share repurchase program. In August 2004, our Board of Directors authorized the repurchase of an additional 750,000 shares of our common stock, increasing the total shares repurchase program to 2.0 million shares of our common stock. During the year ended December 31, 2004, we repurchased approximately 1,964,000 shares at an average price of $8.35 per share.
 
In July 2004, we announced a policy to pay a cash dividend of $0.01 per share every other month payable to the stockholders of record when declared by the Board of Directors. In August 2005, our Board of Directors voted to discontinue the dividend policy. Dividends totaling $689,000 were both declared and paid in 2005 and in 2004 to stockholders of record under this program.
In January 2005, we issued 361,664 shares of common stock and a five year warrant exercisable into 81,037 shares of common stock and an additional 45,208 shares of common stock placed in escrow related to the legal settlement described in Note 87 to the Consolidated Financial Statements and which shares were released from escrow in July 2006. There were 81,037 warrants outstanding as of December 31, 2008 and 2007 with a weighted average exercise price per share of $11.06.


F-27


BIOLASE TECHNOLOGY, INC.
 
The following table summarizes warrant activity:
         
     Weighted
 
     Average
 
     Exercise Price
 
  Shares  per Share 
 
Warrants outstanding, December 31, 2004    $ 
Warrants issued in 2005  81,037  $11.06 
         
Warrants outstanding, December 31, 2007 and 2006  81,037  $11.06 
         
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
Stock Options
 
We have three stock-based compensation plans — the 1990 Stock Option Plan, the 1993 Stock Option Plan and the 2002 Stock Incentive Plan. The 1990 and 1993 Stock Option Plans have been terminated with respect to granting additional stock options. Under the 2002 Stock Incentive Plan, as of December 31, 2007,2008, a total of 5,950,000 shares have been authorized for issuance, of which 1,054,0001,269,000 shares have been issued for options which have been exercised, 4,300,0004,024,000 shares have been reserved for options that are outstanding and 596,000657,000 shares are available for the granting of additional options. Total shares authorized reflect the approval of an additional 1.0 million shares at the 2007 annual meeting of our stockholders.


F-28


 
BIOLASE TECHNOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)On January 7, 2008, we granted a nonqualified stock option of 450,000 shares to our Chief Executive Officer, at a price equal to the fair market value of our common stock on the grant date. The option was granted as an employment inducement grant outside of the adopted stock incentive plans.
 
Stock options may be granted as incentive or nonqualified options; however, no incentive stock options have been granted to date. The exercise price of options is at least equal to the market price of the stock as of the date of grant. Options may vest over various periods but typically vest on a quarterly basis over three years. Options expire after ten years or within a specified time from termination of employment, if earlier. We issue new shares of common stock upon the exercise of stock options. The following table summarizes option activity:
 
                                
   Weighted
 Weighted Average
      Weighted
 Weighted Average
   
   Average
 Remaining
      Average
 Remaining
   
   Exercise Price
 Contractual Term
 Aggregate Intrinsic
    Exercise Price
 Contractual Term
 Aggregate Intrinsic
 
 Shares per Share (Years) Value(1)  Shares per Share (Years) Value(1) 
Options outstanding, December 31, 2004  4,070,000  $6.76         
Granted at fair market value  1,065,000  $7.13         
Exercised  (356,000) $4.08         
Forfeited  (468,000) $9.63         
   
Options outstanding, December 31, 2005  4,311,000  $6.74           4,311,000  $6.74         
Granted at fair market value  666,000  $8.31           666,000  $8.31         
Exercised  (523,000) $5.90           (523,000) $5.90         
Forfeited  (596,000) $9.20           (596,000) $9.20         
      
Options outstanding, December 31, 2006  3,858,000  $6.75           3,858,000  $6.75         
Granted at fair market value  452,000  $6.46           452,000  $6.46         
Granted at above fair market value  747,000  $4.02           747,000  $4.02         
Exercised  (236,000) $3.33           (236,000) $3.33         
Forfeited  (410,000) $8.16           (410,000) $8.16         
      
Options outstanding, December 31, 2007  4,411,000  $6.30   5.63  $161,000   4,411,000  $6.30         
Granted at fair market value  1,414,000  $2.29         
Granted at above fair market value  78,000  $3.95         
Exercised  (241,000) $2.21         
Forfeited  (1,162,000) $6.68         
Options outstanding, December 31, 2008  4,500,000  $5.12   6.70  $224,000 
Options exercisable, December 31, 2008  2,705,000  $6.48   5.04  $ 
      
Options exercisable, December 31, 2007  3,173,000  $6.71   4.09  $161,000 
Options expired during 2007  154,000  $9.65      $ 
Options expired during 2008  843,000  $6.17      $ 
   
 
 
(1)The intrinsic value calculation does not include negative values. This can occur when the fair market value on the reporting date is less than the exercise price of a grant.
The following table summarizes additional information for those options that are outstanding and exercisable as of December 31, 2007:
                     
  Options Outstanding     Exercisable 
        Weighted
       
     Weighted
  Average
     Weighted
 
  Number
  Average
  Remaining
  Number
  Average
 
Range of Exercise Prices
 of Shares  Exercise Price  Life (Years)  of Shares  Exercise Price 
 
$ 2.00 — $ 2.99  801,000  $2.20   1.33   801,000  $2.20 
$ 3.00 — $ 3.99  60,000  $3.94   0.39   60,000  $3.94 
$ 4.00 — $ 4.99  854,000  $4.00   9.17   110,000  $4.00 
$ 5.00 — $ 5.99  766,000  $5.43   3.88   649,000  $5.34 
$ 6.00 — $ 9.99  1,193,000  $7.41   5.70   819,000  $7.37 
$10.00 — $13.99  364,000  $11.25   6.63   361,000  $11.26 
$14.00 — $22.00  373,000  $14.15   2.58   373,000  $14.15 
                     
Total  4,411,000  $6.30   5.01   3,173,000  $6.71 
                     


F-29F-28


 
BIOLASE TECHNOLOGY, INC.
 
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
The following table summarizes additional information for those options that are outstanding and exercisable as of December 31, 2008:
                     
  Options Outstanding     Exercisable 
        Weighted
       
     Weighted
  Average
     Weighted
 
  Number
  Average
  Remaining
  Number
  Average
 
Range of Exercise Prices
 of Shares  Exercise Price  Life (Years)  of Shares  Exercise Price 
 
$.  93 — $ 1.99  433,000  $1.00   9.88     $ 
$ 2.00 — $ 2.99  1,190,000  $2.65   6.74   559,000  $2.49 
$ 3.00 — $ 3.99  121,000  $3.11   9.37   38,000  $3.03 
$ 4.00 — $ 4.99  824,000  $4.00   8.27   321,000  $4.00 
$ 5.00 — $ 5.99  619,000  $5.43   3.69   592,000  $5.41 
$ 6.00 — $ 9.99  764,000  $7.46   6.77   646,000  $7.43 
$10.00 — $13.99  360,000  $11.27   5.31   360,000  $11.27 
$14.00 — $18.99  189,000  $14.15   2.82   189,000  $14.15 
                     
Total  4,500,000  $5.12   6.70   2,705,000  $6.48 
                     
 
Cash proceeds along with fair value disclosures related to grants, exercises and vested options are provided in the following table (in thousands, except per share amounts):
 
                        
 Twelve Months Ended
  Twelve Months Ended
 
 December 31,  December 31, 
 2007 2006 2005  2008 2007 2006 
Proceeds from stock options exercised $728  $3,086  $1,243  $532  $728  $3,086 
Tax benefit related to stock options exercised(1)  N/A   N/A   N/A   N/A   N/A   N/A 
Intrinsic value of stock options exercised(2) $336  $1,300  $1,011  $351  $336  $1,300 
Weighted-average fair value of options granted $2.45  $4.19  $3.62  $1.37  $2.45  $4.19 
Total fair value of shares vested during the year(3) $1,353  $1,582  $7,994  $1,730  $1,353  $1,582 
 
 
(1)FAS 123R requires that the excess tax benefits received related to stock option exercises be presented as financing cash inflows. We currently do not receive a tax benefit related to the exercise of stock options due to our net operating losses.
 
(2)The intrinsic value of stock options exercised is the amount by which the market price of the stock on the date of exercise exceeded the market price of the stock on the date of grant.
(3)For 2005, the total fair value of shares vested includes $3.2 million associated with the acceleration of vesting of certain stock options on December 16, 2005.
 
A summary of the status of our unvested options as of December 31, 2005, and changes during the two-years ended December 31, 2007, is presented below:NOTE 9 — SEGMENT INFORMATION
         
     Weighted-
 
     Average Grant-
 
     Date Fair
 
Unvested Options
 Options  Value 
 
Unvested options at December 31, 2005  425,000  $3.94 
Granted  666,000  $4.19 
Vested  (382,000) $4.14 
Forfeited  (111,000) $3.83 
         
Unvested options at December 31, 2006  598,000  $4.11 
Granted  1,199,000  $2.45 
Vested  (333,000) $4.06 
Forfeited  (226,000) $3.70 
         
Unvested options at December 31, 2007  1,238,000  $2.59 
         
NOTE 10 — SEGMENT INFORMATION
 
We currently operate in a single business segment. For the year ended December 31, 2007,2008, sales in Europe, Middle East and Africa (“EMEA”) accounted for approximately 8% of our net revenue, and sales in Canada, Asia, Latin America and Pacific Rim countries accounted for approximately 16% of our net revenue. For the year ended December 31, 2007, sales in EMEA accounted for approximately 9% of our net revenue, and sales in Canada, Asia, Latin America and Pacific Rim countries accounted for approximately 29% of our net revenue. For the year ended December 31, 2006, sales in EMEA accounted for approximately 10% of our net revenue, and sales in Canada, Asia, Latin America and Pacific Rim countries accounted for approximately 27% of our net revenue. For the year ended December 31, 2005, sales in EMEA accounted for approximately 11% of our net revenue, and sales in Canada, Asia, Latin America and Pacific Rim countries accounted for approximately 19% of our net revenue.


F-30F-29


 
BIOLASE TECHNOLOGY, INC.
 
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
Net revenue by geographic location based on the location of customers was as follows (in thousands):
 
                        
 Years Ended December 31,  Years Ended December 31, 
 2007 2006 2005  2008 2007 2006 
United States $41,598  $43,674  $43,592  $48,526  $41,598  $43,674 
Europe, Middle East and Africa  6,139   7,045   6,527   5,453   6,139   7,045 
Canada, Asia, Latin America and Pacific Rim  19,152   18,981   11,861   10,646   19,152   18,981 
              
 $66,889  $69,700  $61,980  $64,625  $66,889  $69,700 
              
 
Long-lived assets located outside of the United States at our foreign subsidiaries were $1.3 million$747,000 and $1.2$1.3 million as of December 31, 20072008 and 2006,2007, respectively.
 
NOTE 11 —CONCENTRATIONS
NOTE 10 — CONCENTRATIONS
 
Revenue from our Waterlase systems, our principal product, comprised 68%62%, 79%68% and 83%79% of our total net revenues for the years ended December 31, 2008, 2007 2006 and 2005,2006, respectively. Revenue from our Diode systems comprised 14%19%, 5%14%, and 9%5% of our total revenue for the same periods.
 
On August 8, 2006, we entered into a License and Distribution Agreement with Henry Schein, Inc., or HSIC, a large distributor of healthcare products to office-based practitioners, pursuant to which we granted HSIC the exclusive right to distribute our complete line of dental laser systems, accessories and services in the United States and Canada. Approximately 62%70% and 28%62% of our revenue in 20072008 and 2006,2007, respectively, was generated through sales to HSIC. Prior to entering into the distribution agreement with HSIC, many dentists financed their purchases through third-party leasing companies. In these transactions, the leasing company was considered the purchaser. Approximately 19% and 35% of our revenue in 2006 and 2005, respectively, werewas generated from dentists who financed their purchase through one leasing company, National Technology Leasing Corporation (“NTL”). On February 27, 2009, we entered into an agreement with HSIC in which HSIC will become our distributor in certain international countries including Germany, Spain, Australia and New Zealand and will be permitted to distribute our products in those additional markets where we do not have current distribution agreements in place. As a result of this change we expect that total worldwide sales to HSIC will increase as a percentage of our total revenue. One international distributor accounted for approximately 12%4% and 15%12% of our revenues in 20072008 and 2006,2007, respectively.
 
We maintain our cash accounts with established commercial banks. Such cash deposits periodically exceed the Federal Deposit Insurance Corporation insured limit of $100,000 for each account.$250,000 per depository through December 31, 2008.
 
Accounts receivable concentrations have resulted from sales to HSIC and one international distributor that totaled $427,000 and $765,000 or 11% and 20%, respectively, at December 31, 2008. Accounts receivable concentrations have resulted from sales to HSIC and one international distributor that totaled $6.0 million and $1.6 million or 53.0% and 14.4%, respectively, at December 31, 2007. As of March 5, 2008, $6.7 million of the aforementioned $7.6 million in receivables have been collected. Accounts receivable concentrations from sales to HSIC and one international distributor as of December 31, 2006 totaled $10.4 million and $1.5 million or 68.7% and 10.0%, respectively.
 
We currently buy certain key components of our products from single suppliers. Although there are a limited number of manufacturers of these key components, management believes that other suppliers could provide similar key components on comparable terms. A change in suppliers, however, could cause a delay in manufacturing and a possible loss of sales, which would adversely affect consolidated operating results.


F-31F-30


 
BIOLASE TECHNOLOGY, INC.
 
NOTES TO CONSOLIDATED FINANCIAL STATEMENT — (Continued)
 
NOTE 12 —RESTRUCTURING CHARGE
NOTE 11 — RESTRUCTURING CHARGE
 
As discussed in Note 8, effectiveEffective November 5, 2007, we terminated the employment of Jeffrey W. Jones, our President and Chief Executive Officer and appointed Federico Pignatelli, one of our current directors and Chairman Emeritus, as Interim President and Chief Executive Officer. On the same date, we terminated the employment of Keith G. Bateman, our Executive Vice President, Global Sales and Marketing and redirected Mr. Bateman’s functions and responsibilities to existing internal management resources. In addition to these management changes, we also terminated eleven other employees across all functions, in an effort to better rationalize resources and streamline operations. In connection with the terminations, we recognized restructuring expense in the fourth quarter of 2007 of $802,000, comprised of severance and severance-related expenses of $702,000 and legal expense of $100,000.


F-32F-31


BIOLASE TECHNOLOGY, INC.
 
Schedule II — Consolidated Valuation and Qualifying Accounts and Reserves
For the Years Ended December 31, 2008, 2007 2006 and 20052006
 
                                
 Balance at
 Charges
      Balance at
 Charges
     
 Beginning
 (Reversals) to Cost
   Balance at
  Beginning
 (Reversals) to Cost
   Balance at
 
 of Year or Expenses Deductions End of Year  of Year or Expenses Deductions End of Year 
 (In thousands)  (In thousands) 
Year Ended December 31, 2008:                
Allowance for doubtful accounts $1,033  $(68) $(439) $526 
Allowance for sales returns  187         187 
Allowance for inventory obsolescence  724   104      828 
Allowance for tax valuation  25,783   1,659      27,442 
Year Ended December 31, 2007:                                
Allowance for doubtful accounts $1,357  $(264) $(60) $1,033  $1,357  $(264) $(60) $1,033 
Allowance for sales returns  248      (61)  187   248      (61)  187 
Allowance for inventory obsolescence  683   89   (48)  724   683   89   (48)  724 
Allowance for tax valuation  26,634   (851)     25,783   26,634   (851)     25,783 
Year Ended December 31, 2006:                                
Allowance for doubtful accounts $420  $941  $(4) $1,357  $420  $941  $(4) $1,357 
Allowance for sales returns  226   265   (243)  248   226   265   (243)  248 
Allowance for inventory obsolescence  573   140   (30)  683   573   140   (30)  683 
Allowance for tax valuation  27,971   (1,337)     26,634   27,971   (1,337)     26,634 
Year Ended December 31, 2005:                
Allowance for doubtful accounts $384  $131  $(95) $420 
Allowance for sales returns  420   298   (492)  226 
Allowance for inventory obsolescence  687   711   (825)  573 
Allowance for tax valuation  21,142   6,829      27,971 


S-1


EXHIBIT INDEX
 
        
Exhibit
Exhibit
  Exhibit
  
Number
Number
 
Description
Number
 
Description
3.1 Restated Certificate of Incorporation, as amended. (Filed with Registrants’ Amendment No. 1 to Registration Statement on Form S-1 filed December 23, 2005 and incorporated herein by reference.)3.1 Restated Certificate of Incorporation, as amended. (Filed with Registrants’ Amendment No. 1 to Registration Statement onForm S-1 filed December 23, 2005 and incorporated herein by reference.)
3.2 Amended and Restated Bylaws. (Filed May 18, 2007 with Registrant’s Current Report on Form 8-K and incorporated herein by reference).3.2 Fourth Amended and Restated Bylaws. (Filed with Registrant’s Current Report onForm 8-K filed on December 22, 2008 and incorporated herein by reference)
4.1 Certificate of Designations, Preferences and Rights of 6% Redeemable Cumulative Convertible Preferred Stock of Biolase Technology, Inc. (included in Exhibit 3.1.)4.1 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.)4.2 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.)4.3 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.)4.4 Certificate of Designations of Series B Junior Participating Cumulative Preferred Stock of Biolase Technology, Inc. (included in Exhibit 3.1.)
4.5 Rights Agreement dated as of December 31, 1998, between the Registrant and U.S. Stock Transfer Corporation. (Filed with Registrant’s Registration Statement on Form 8-A filed December 29, 1998 and incorporated herein by reference.)4.5 Rights Agreement dated as of December 31, 1998, between the Registrant and U.S. Stock Transfer Corporation. (Filed with Registrant’s Registration Statement onForm 8-A filed December 29, 1998 and incorporated herein by reference.)
4.6 Specimen of common stock certificate. (Filed with Registrant’s Registration Statement on Form S-3 filed June 3, 2002 and incorporated herein by reference.)4.6 Amendment to Rights Agreement, dated December 19, 2008, between Biolase Technology, Inc. and Computershare Trust Company, N.A. (Filed with the Registrant’s Current Report onForm 8-K filed on December 22, 2008 and incorporated herein by reference)
4.7 Warrant to Purchase 81,037 shares of Common Stock of Biolase Technology, Inc. issued to Diodem, LLC dated January 24, 2005. (Filed with Registrant’s Quarterly Report on Form 10-Q filed September 30, 2005 and incorporated herein by reference.)4.7 Specimen of common stock certificate. (Filed with Registrant’s Registration Statement onForm S-3 filed June 3, 2002 and incorporated herein by reference.)
4.8 Registration Rights Agreement between Biolase Technology, Inc. and Diodem, LLC dated January 24, 2005. (Filed with Registrant’s Quarterly Report on Form 10-Q filed September 30, 2005 and incorporated herein by reference.)4.8 Warrant to Purchase 81,037 shares of Common Stock of Biolase Technology, Inc. issued to Diodem, LLC dated January 24, 2005. (Filed with Registrant’s Quarterly Report onForm 10-Q filed September 30, 2005 and incorporated herein by reference.)
4.9 Form of Warrant to Purchase Common Stock of Registrant issued to assignees of Diodem, LLC dated August 15, 2005. (Filed with Registrant’s Quarterly Report on Form 10-Q filed November 9, 2005 and incorporated herein by reference.)4.9 Registration Rights Agreement between Biolase Technology, Inc. and Diodem, LLC dated January 24, 2005. (Filed with Registrant’s Quarterly Report onForm 10-Q filed September 30, 2005 and incorporated herein by reference.)
10.1 Form of Purchase Order Term and Conditions relating to domestic sales (effective for sales after August 4, 2003). (Filed with Amendment No. 2 to Registrant’s Annual Report on Form 10-K/A filed December 16, 2003 and incorporated herein by reference.)4.10 Form of Warrant to Purchase Common Stock of Registrant issued to assignees of Diodem, LLC dated August 15, 2005. (Filed with Registrant’s Quarterly Report onForm 10-Q filed November 9, 2005 and incorporated herein by reference.)
10.2 BIOLASE and NTL Agreement dated August 5, 2003, between National Technology Leasing Corporation and the Registrant. (Filed with Amendment No. 2 to Registrant’s Annual Report on Form 10-K/A filed December 16, 2003 and incorporated herein by reference.)10.1 Form of Purchase Order Term and Conditions relating to domestic sales (effective for sales after August 4, 2003). (Filed with Amendment No. 2 to Registrant’s Annual Report onForm 10-K/A filed December 16, 2003 and incorporated herein by reference.)
10.3 Form of Purchase Order Terms and Conditions from National Technology Leasing Corporation. (Filed with Amendment No. 2 to Registrant’s Annual Report on Form 10-K/A filed December 16, 2003 and incorporated herein by reference.)10.2 BIOLASE and NTL Agreement dated August 5, 2003, between National Technology Leasing Corporation and the Registrant. (Filed with Amendment No. 2 to Registrant’s Annual Report onForm 10-K/A filed December 16, 2003 and incorporated herein by reference.)
10.4* 1990 Stock Option Plan. (Filed with Registrant’s Registration Statement on Form S-1 filed October 9, 1992 and incorporated herein by reference.)10.3 Form of Purchase Order Terms and Conditions from National Technology Leasing Corporation. (Filed with Amendment No. 2 to Registrant’s Annual Report onForm 10-K/A filed December 16, 2003 and incorporated herein by reference.)
10.5* Form of Stock Option Agreement under the 1990 Stock Option Plan. (Filed with Registrant’s Annual Report on Form 10-K filed July 19, 2005 and incorporated herein by reference.)10.4* 1990 Stock Option Plan. (Filed with Registrant’s Registration Statement onForm S-1 filed October 9, 1992 and incorporated herein by reference.)
10.6* 1993 Stock Option Plan. (Filed with Registrant’s Annual Report on Form 10-K filed April 14, 1994 and incorporated herein by reference.)10.5* Form of Stock Option Agreement under the 1990 Stock Option Plan. (Filed with Registrant’s Annual Report onForm 10-K filed July 19, 2005 and incorporated herein by reference.)
10.7* Form of Stock Option Agreement under the 1993 Stock Option Plan. (Filed with Registrant’s Annual Report on Form 10-K filed April 14, 1994 and incorporated herein by reference.)10.6* 1993 Stock Option Plan. (Filed with Registrant’s Annual Report onForm 10-K filed April 14, 1994 and incorporated herein by reference.)
10.8* 2002 Stock Incentive Plan. (Filed with Registrant’s definitive Proxy Statement filed October 17, 2005 and incorporated herein by reference.)10.7* Form of Stock Option Agreement under the 1993 Stock Option Plan. (Filed with Registrant’s Annual Report onForm 10-K filed April 14, 1994 and incorporated herein by reference.)
10.9* Form of Stock Option Agreement under the 2002 Stock Option Plan. (Filed with Registrant’s Annual Report on Form 10-K filed July 19, 2005 and incorporated herein by reference.)
10.10 2002 Stock Incentive Plan (Filed with Registrant’s definitive Proxy Statement filed April 10, 2007 and incorporated herein by reference.)


S-1


        
Exhibit
Exhibit
  Exhibit
  
Number
Number
 
Description
Number
 
Description
10.11† Definitive Asset Purchase Agreement dated January 24, 2005 by and among Diodem, LLC, BL Acquisition II, Inc. and Biolase Technology, Inc. (Filed January 28, 2005 with Registrant’s Current Report on Form 8-K and incorporated herein by reference).10.8* 2002 Stock Incentive Plan. (Filed with Registrant’s definitive Proxy Statement filed October 17, 2005 and incorporated herein by reference.)
10.12† License Agreement between SurgiLight, Inc. and Biolase Technology, Inc. dated February 3, 2005 (Filed March 18, 2005 with Registrant’s Current Report on Form 8-K and incorporated herein by reference).10.9* Form of Stock Option Agreement under the 2002 Stock Option Plan. (Filed with Registrant’s Annual Report onForm 10-K filed July 19, 2005 and incorporated herein by reference.)
10.13* Form of Indemnification Agreement between Registrant and its officers and directors. (Filed with Registrant’s Quarterly Report on Form 10-Q filed November 9, 2005 and incorporated herein by reference.)10.10 2002 Stock Incentive Plan (Filed with Registrant’s definitive Proxy Statement filed April 10, 2007 and incorporated herein by reference.)
10.14* Form of Resale Restriction Agreement dated December 16, 2005 between Registrant and certain key employees and officers. (Filed December 22, 2005 with Registrant’s Current Report of Form 8-K and incorporated herein by reference.)10.11† Definitive Asset Purchase Agreement dated January 24, 2005 by and among Diodem, LLC, BL Acquisition II, Inc. and Biolase Technology, Inc. (Filed January 28, 2005 with Registrant’s Current Report onForm 8-K and incorporated herein by reference).
10.15* Resale Restriction Agreement dated as of December 29, 2005 between Registrant and Jeffrey W. Jones. (Filed January 10, 2006 with Registrant’s Current Report of Form 8-K and incorporated herein by reference.)10.12† License Agreement between SurgiLight, Inc. and Biolase Technology, Inc. dated February 3, 2005 (Filed March 18, 2005 with Registrant’s Current Report onForm 8-K and incorporated herein by reference).
10.16 Lease dated January 10, 2006 between Registrant and The Irvine Company LLC. (Filed January 17, 2006 with Registrant’s Current Report of Form 8-K and incorporated herein by reference.)10.13* Form of Indemnification Agreement between Registrant and its officers and directors. (Filed with Registrant’s Quarterly Report onForm 10-Q filed November 9, 2005 and incorporated herein by reference.)
10.17† Letter Agreement, dated June 28, 2006, by and between The Procter & Gamble Company and Biolase Technology, Inc. (Filed with Registrant’s Quarterly Report on Form 10-Q filed August 9, 2006 and incorporated herein by reference.)10.14* Form of Resale Restriction Agreement dated December 16, 2005 between Registrant and certain key employees and officers. (Filed December 22, 2005 with Registrant’s Current Report ofForm 8-K and incorporated herein by reference.)
10.18† License Agreement, dated January 24, 2007, by and between The Procter & Gamble Company and Biolase Technology, Inc. (Filed with Registrant’s Quarterly Report on Form 10-Q filed May 10, 2007 and incorporated herein by reference.)10.15* Resale Restriction Agreement dated as of December 29, 2005 between Registrant and Jeffrey W. Jones. (Filed January 10, 2006 with Registrant’s Current Report ofForm 8-K and incorporated herein by reference.)
10.19† License and Distribution Agreement dated as of August 8, 2006 by and among Biolase Technology, Inc. and Henry Schein, Inc. (Filed with Registrant’s Quarterly Report on Form 10-Q filed November 8, 2006 and incorporated herein by reference.)10.16 Lease dated January 10, 2006 between Registrant and The Irvine Company LLC. (Filed January 17, 2006 with Registrant’s Current Report onForm 8-K and incorporated herein by reference.)
10.20† Addendum 1 to License and Distribution Agreement dated as of April 1, 2007 by and among Biolase Technology, Inc. and Henry Schein, Inc. (Filed with Registrant’s Quarterly Report on Form 10-Q filed August 9, 2007 and incorporated herein by reference.)10.17† Letter Agreement, dated June 28, 2006, by and between The Procter & Gamble Company and Biolase Technology, Inc. (Filed with Registrant’s Quarterly Report onForm 10-Q filed August 9, 2006 and incorporated herein by reference.)
10.21 Loan and Security Agreement entered into as of September 28, 2006, by and between Comerica Bank and Biolase Technology, Inc. (Filed with Registrant’s Current Report on Form 8-K filed October 4, 2006 and incorporated herein by reference.)10.18† License Agreement, dated January 24, 2007, by and between The Procter & Gamble Company and Biolase Technology, Inc. (Filed with Registrant’s Quarterly Report onForm 10-Q filed May 10, 2007 and incorporated herein by reference.)
10.22 Unconditional Guaranty, dated as of September 28, 2006, by BL Acquisition Corp. for the benefit of Comerica Bank under the Loan Agreement. (Filed with Registrant’s Current Report on Form 8-K filed October 4, 2006 and incorporated herein by reference.)10.19† License and Distribution Agreement dated as of August 8, 2006 by and among Biolase Technology, Inc. and Henry Schein, Inc. (Filed with Registrant’s Quarterly Report onForm 10-Q filed November 8, 2006 and incorporated herein by reference.)
10.23 Unconditional Guaranty, dated as of September 28, 2006, by BL Acquisition II, Inc. for the benefit of Comerica Bank under the Loan Agreement. (Filed with Registrant’s Current Report on Form 8-K filed October 4, 2006 and incorporated herein by reference.)10.20† Addendum 1 to License and Distribution Agreement dated as of April 1, 2007 by and among Biolase Technology, Inc. and Henry Schein, Inc. (Filed with Registrant’s Quarterly Report onForm 10-Q filed August 9, 2007 and incorporated herein by reference.)
10.24 First Amendment to Loan and Security Agreement dated as of October 5, 2007, by and between Comerica Bank and Biolase Technology, Inc. (Filed with Registrant’s Quarterly Report on Form 10-Q filed November 9, 2007 and incorporated herein by reference.)10.21† Amendment to the License and Distribution Agreement dated February 29, 2008, by and between Biolase Technology, Inc. and Henry Schein, Inc. (Filed with Registrant’s Quarterly Report onForm 10-Q filed May 9, 2008 and incorporated herein by reference.)
14.1 Biolase Technology, Inc. Code of Business Conduct and Ethics. (Filed with the Registrant’s Definitive Proxy Statement for its 2004 Annual Meeting of Stockholders filed May 10, 2004 and incorporated herein by reference.)10.22 Letter Agreement dated as of December 23, 2008 by and among Biolase Technology, Inc. and Henry Schein, Inc.
21.1 Subsidiaries of the Registrant.10.23 Employment Agreement dated January 2, 2008 between the Registrant and Jake P. St. Philip (Filed with Registrant’s Quarterly Report onForm 10-Q filed May 9, 2008 and incorporated herein by reference.)
23.1 Consent of Independent Registered Public Accounting Firm, BDO Seidman, LLP10.24 Stock Option Agreement dated March 7, 2008 between the Registrant and Jake P. St. Philip (Filed with Registrant’s Quarterly Report onForm 10-Q filed May 9, 2008 and incorporated herein by reference.)
24.1 Power of Attorney (included in Signature page).10.25 Employment Agreement dated April 29, 2008 between the Registrant and David M. Mulder (Filed with Registrant’s Quarterly Report onForm 10-Q filed August 8, 2008 and incorporated herein by reference.)
31.1 Certification of CEO pursuant to Rule 13a-14(a) and Rule 15d-14(a), promulgated under the Securities Exchange Act of 1934, as amended.10.26 Separation and General Release Agreement dated January 22, 2008 between the Registrant and Keith G. Bateman (Filed with Registrant’s Quarterly Report onForm 10-Q filed May 9, 2008 and incorporated herein by reference.)
31.2 Certification of interim CFO pursuant to Rule 13a-14(a) and Rule 15d-14(a), promulgated under the Securities Exchange Act of 1934, as amended.

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Exhibit
Exhibit
  Exhibit
  
Number
Number
 
Description
Number
 
Description
32.1 Certification of CEO pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.10.27 Separation and General Release Agreement dated January 31, 2008 between the Registrant and Jeffrey W. Jones (Filed with Registrant’s Quarterly Report onForm 10-Q filed May 9, 2008 and incorporated herein by reference.)
32.2 Certification of interim CFO pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.10.28 Settlement Agreement between the Registrant and Diodem LLC dated September 30, 2008.
14.1 Biolase Technology, Inc. Code of Business Conduct and Ethics. (Filed with the Registrant’s Definitive Proxy Statement for its 2004 Annual Meeting of Stockholders filed May 10, 2004 and incorporated herein by reference.)
21.1 Subsidiaries of the Registrant.
23.1 Consent of Independent Registered Public Accounting Firm, BDO Seidman, LLP
24.1 Power of Attorney (included in Signature page).
31.1 Certification of CEO pursuant toRule 13a-14(a) andRule 15d-14(a), promulgated under the Securities Exchange Act of 1934, as amended.
31.2 Certification of interim CFO pursuant toRule 13a-14(a) andRule 15d-14(a), promulgated under the Securities Exchange Act of 1934, as amended.
32.1 Certification of CEO pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2 Certification of interim CFO pursuant to 18 U.S.C. Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
 
 
Confidential treatment was granted for certain confidential portions of this exhibit pursuant toRule 24b-2 under the Securities Exchange Act of 1934. In accordance withRule 24b-2, these confidential portions were omitted from this exhibit and filed separately with the Securities and Exchange Commission.
 
*Management contract or compensatory plan or arrangement.

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