UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): November 9, 2017
BIOLASE, INC.
Exact name of registrant as specified in its charter)
Delaware | 001-36385 | 87-0442441 | ||
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
||
4 Cromwell, Irvine, California | 92618 | |||
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code: 949-361-1200
Not Applicable
Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
On November 9, 2017, in consideration for the Schuler Parties and Oracle Parties (each defined below) agreeing to exercise their respective basic subscription rights and any available over-subscription privilege in connection with the Companys previously announced rights offering pursuant to commitment letters, each dated September 26, 2017, the Company entered into an amendment (the Schuler Amendment) to the Standstill Agreement dated November 10, 2015, as amended August 1, 2016 (the Schuler Standstill Agreement) with Jack W. Schuler, Renate Schuler and the Schuler Family Foundation (collectively, the Schuler Parties), and the Company entered into an amendment (the Oracle Amendment and, together with the Schuler Amendment, the Amendments) to the Standstill Agreement dated November 10, 2015, as amended August 1, 2016 (the Oracle Standstill Agreement and, together with the Schuler Standstill Agreement, the Standstill Agreements) with Larry N. Feinberg, Oracle Partners, L.P., Oracle Institutional Partners, L.P., Oracle Ten Fund Master, L.P., Oracle Associates, LLC and Oracle Investment Management, Inc. (collectively, the Oracle Parties). Pursuant to the Companys previously filed Registration Statement on Form S-1 with the Securities and Exchange Commission (the SEC) and effective as of the closing of the Companys rights offering, the Amendments increase the ownership limit under each of the Standstill Agreements from 30% to 41% such that, pursuant to the Standstill Agreements, as amended, each of the Schuler Parties and the Oracle Parties has agreed with respect to itself and its associates and affiliates, among other things, not to purchase or acquire any shares of the Companys common stock if such a purchase would result in aggregate beneficial ownership by it and its affiliates and associates in excess of 41% of the issued and outstanding shares of the Companys common stock.
The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the full text of the Schuler Amendment and the Oracle Amendment, copies of which are attached hereto as Exhibit 99.1 and Exhibit 99.2, respectively, and incorporated herein by reference.
Item 8.01 Other Events.
On November 9, 2017, the Company issued a press release announcing the commencement of the Companys previously announced rights offering to holders of shares of its common stock.
Each shareholder received 0.346 subscription rights exercisable for each share of the Companys common stock owned as of 5:00 p.m., Eastern Time, on November 8, 2017, the record date. Each whole subscription right entitles the holder to purchase one share of the Companys common stock at a subscription price equal to $0.456 per share. The subscription period expires at 5:00 p.m., Eastern Time, on November 29, 2017, unless extended. The rights offering also includes an over-subscription privilege, which permits each rights holder that exercises the basic subscription privilege in full the option to purchase additional shares of common stock that remain unsubscribed at the expiration of the offering, subject to allotment.
Certain affiliates of Larry Feinberg and certain affiliates of Jack Schuler have each agreed with the Company to exercise their respective basic subscription rights and any available over-subscription privilege pursuant to the rights offering in an amount not less than $3,000,000 and $3,000,000, respectively. The purpose of the rights offering is to raise equity capital in a cost-effective manner that gives all of the Companys existing stockholders the opportunity to participate on a pro rata basis. The net proceeds of the offering will be used for the Companys general working capital needs. If the rights offering is successful, the Company expects to receive gross proceeds of approximately $12,000,000 before expenses.
A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated by reference herein.
The Companys previously filed Registration Statement on Form S-1 with the SEC has been declared effective as of November 8, 2017. A copy of the prospectus forming a part of the Registration Statement may be obtained free of charge at the website maintained by the SEC at www.sec.gov or by contacting the information agent for the rights offering, Georgeson LLC, toll free at (800) 561-3991. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such jurisdiction.
Statements contained in this Current Report on Form 8-K that refer to the Companys estimated or anticipated future results or other non-historical facts are forward-looking statements, as are any statements in this Current Report on Form 8-K concerning prospects related to the Companys strategic initiatives and anticipated financial performance. Forward-looking statements can also be identified through the use of words such as anticipates, expects, intends, plans, believes, seeks, estimates, may, will, and variations of these words or similar expressions. Readers are cautioned not to place undue reliance on these forward-looking statements, which reflect the Companys current expectations regarding existing trends, and its strategic initiatives, and speak only as of the date of this Current Report on Form 8-K. Actual results may
differ materially from the Companys current expectations depending upon a number of factors affecting the Companys business. These factors include, among others, adverse changes in general economic and market conditions, competitive factors including but not limited to pricing pressures and new product introductions, uncertainty of customer acceptance of new product offerings and market changes, risks associated with managing the growth of the business, and those other risks and uncertainties that may be detailed, from time-to-time, in the Companys reports filed with the SEC. The Company does not undertake any responsibility to revise or update any forward-looking statements contained herein.
Item 9.01. Financial Statements and Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
BIOLASE, Inc. | ||||||
By: |
/s/ Harold C. Flynn, Jr. |
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Date: November 9, 2017 | Name: Harold C. Flynn, Jr. | |||||
Title: President and CEO |
Exhibit 99.1
November 9, 2017
Mr. Jack Schuler
Ms. Renate Schuler
Schuler Family Foundation
c/o Crabtree Partners, LLC
28161 North Keith Drive
Lake Forest, Illinois 60045
Re: | Amendment to Standstill Agreement |
Ladies and Gentlemen:
Reference is made to that certain Standstill Agreement, dated November 10, 2015 (the Standstill Agreement ), among Biolase, Inc. ( Biolase ), Jack W. Schuler, Renate Schuler and the Schuler Family Foundation, as amended by the Amendment to Standstill Agreement dated August 1, 2016.
In consideration for Renate Schuler, Jack W. Schuler Living Trust and Schuler Family Foundation agreeing to exercise their respective basic subscription rights and any available over-subscription privilege pursuant to Biolases rights offering (the Rights Offering ) on the terms and conditions set forth in the Commitment Letter, dated September 26, 2017 (the Commitment Letter ), and pursuant to that certain registration statement on Form S-1 filed on September 29, 2017, as amended, Biolase hereby agrees, subject to the closing of the Rights Offering, to amend the Standstill Agreement such that the reference to 30% therein is changed to 41%, effective immediately prior to the closing of the Rights Offering. Except as described in the immediately preceding sentence, the Standstill Agreement shall remain in full force and effect.
This letter agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware without giving any effect to principles of conflicts of laws.
[ Signatures follow ]
Sincerely, | ||
Biolase, Inc. | ||
By: |
/s/ Harold C. Flynn, Jr. |
|
Name: | Harold C. Flynn, Jr. | |
Title: | President and Chief Executive Officer |
The foregoing is hereby accepted:
/s/ Jack W. Schuler |
||
Jack W. Schuler | ||
/s/ Renate Schuler |
||
Renate Schuler | ||
Schuler Family Foundation | ||
By: |
/s/ Jack W. Schuler |
|
Name: | Jack W. Schuler | |
Title: | Executive Director & President |
[ Amendment to Standstill Agreement ]
Exhibit 99.2
November 9, 2017
Mr. Larry N. Feinberg
Oracle Partners, L.P.
Oracle Institutional Partners, L.P.
Oracle Ten Fund Master, L.P.
Oracle Associates, LLC
Oracle Investment Management, Inc.
200 Greenwich Avenue, 3rd Floor
Greenwich, Connecticut 06830
Re: | Amendment to Standstill Agreement |
Ladies and Gentlemen:
Reference is made to that certain Standstill Agreement, dated November 10, 2015 (the Standstill Agreement ), among Biolase, Inc. ( Biolase ), Mr. Larry N. Feinberg, Oracle Partners, L.P., Oracle Institutional Partners, L.P., Oracle Ten Fund Master, L.P., Oracle Associates, LLC and Oracle Investment Management, Inc., as amended by the Amendment to Standstill Agreement, dated August 1, 2016.
In consideration for Oracle Partners L.P., Oracle Institutional Partners L.P. and Oracle Ten Fund Master, LP agreeing to exercise their respective basic subscription rights and any available over-subscription privilege pursuant to Biolases rights offering (the Rights Offering ) on the terms and conditions set forth in the Commitment Letter, dated September 26, 2017 (the Commitment Letter ), and pursuant to that certain registration statement on Form S-1 filed on September 29, 2017, as amended, Biolase hereby agrees, subject to the closing of the Rights Offering, to amend the Standstill Agreement such that the reference to 30% therein is changed to 41%, effective immediately prior to the closing of the Rights Offering. Except as described in the immediately preceding sentence, the Standstill Agreement shall remain in full force and effect.
This letter agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware without giving any effect to principles of conflicts of laws.
[ Signatures follow ]
Sincerely, | ||
BIOLASE, INC. | ||
By: |
/s/ Harold C. Flynn, Jr. |
|
Name: | Harold C. Flynn, Jr. | |
Title: | President and Chief Executive Officer |
The foregoing is hereby accepted:
/s/ Larry N. Feinberg |
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LARRY N. FEINBERG | ||||||||||
ORACLE PARTNERS, L.P. | ||||||||||
By: ORACLE ASSOCIATES, LLC, its general partner | ||||||||||
By: |
/s/ Larry N. Feinberg |
|||||||||
Larry N. Feinberg, Managing Member | ||||||||||
ORACLE INSTITUTIONAL PARTNERS, L.P. | ||||||||||
By: ORACLE ASSOCIATES, LLC, its general partner | ||||||||||
By: |
/s/ Larry N. Feinberg |
|||||||||
Larry N. Feinberg, Managing Member | ||||||||||
ORACLE TEN FUND MASTER, L.P. | ||||||||||
By: ORACLE ASSOCIATES, LLC, its general partner | ||||||||||
By: |
/s/ Larry N. Feinberg |
|||||||||
Larry N. Feinberg, Managing Member | ||||||||||
ORACLE ASSOCIATES, LLC | ||||||||||
By: |
/s/ Larry N. Feinberg |
|||||||||
Larry N. Feinberg, Managing Member | ||||||||||
ORACLE INVESTMENT MANAGEMENT, INC. | ||||||||||
By: |
/s/ Larry N. Feinberg |
|||||||||
Larry N. Feinberg, Managing Member |
[ Amendment to Standstill Agreement ]
Exhibit 99.3
BIOLASE ANNOUNCES COMMENCEMENT OF RIGHTS OFFERING
IRVINE, Calif. , November 9, 2017 BIOLASE, Inc. (NASDAQ: BIOL), the global leader in dental lasers, today announced that it has commenced its previously announced rights offering to holders of shares of its common stock.
Under the terms of the rights offering, the Company distributed to its shareholders as of 5:00 p.m., Eastern Time, on November 8, 2017, the record date, 0.346 subscription rights exercisable for each share of the Companys common stock owned. Each whole subscription right entitles the holder to purchase one share of the Companys common stock at a subscription price equal to $0.456 per share. The subscription period expires at 5:00 p.m., Eastern Time, on November 29, 2017, unless extended. The rights offering also includes an over-subscription privilege, which permits each rights holder that exercises the basic subscription privilege in full the option to purchase additional shares of common stock that remain unsubscribed at the expiration of the offering, subject to allotment.
Certain affiliates of Larry Feinberg and certain affiliates of Jack Schuler have each agreed with the Company to exercise their respective basic subscription rights and any available over-subscription privilege pursuant to the rights offering in an amount not less than $3,000,000 and $3,000,000, respectively. The purpose of the rights offering is to raise equity capital in a cost-effective manner that gives all of the Companys existing stockholders the opportunity to participate on a pro rata basis. The net proceeds of the offering will be used for the Companys general working capital needs. If the rights offering is successful, the Company expects to receive gross proceeds of approximately $12,000,000 before expenses.
The Companys previously filed Registration Statement on Form S-1 with the Securities and Exchange Commission has been declared effective as of November 8, 2017. A copy of the prospectus forming a part of the Registration Statement may be obtained free of charge at the website maintained by the Securities and Exchange Commission at www.sec.gov or by contacting the information agent for the rights offering, Georgeson LLC, toll free at (800) 561-3991. This press release shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such jurisdiction.
About BIOLASE, Inc.
BIOLASE, Inc. is a medical device company that develops, manufactures, markets, and sells laser systems in dentistry and medicine and also markets, sells, and distributes dental imaging equipment, including three-dimensional CAD/CAM intra-oral scanners and digital dentistry software. BIOLASEs products advance the practice of dentistry and medicine for patients and healthcare professionals. BIOLASEs proprietary laser products incorporate approximately 220 patented and 90 patent-pending technologies designed to provide biologically clinically superior performance with less pain and faster recovery times. BIOLASEs innovative products provide cutting-edge technology at competitive prices to deliver the best results for dentists and patients. BIOLASEs principal products are revolutionary dental laser systems that perform a broad range of dental procedures, including cosmetic and complex surgical applications, and a full line of dental imaging equipment. BIOLASE has sold over 35,500 laser systems to date in over 90 countries around the world. Laser products under development address BIOLASEs core dental market and other adjacent medical and consumer markets.
Safe Harbor Statement under the Private Securities Litigation Reform Act of 1995
Statements contained in this press release that refer to BIOLASEs estimated or anticipated future results or other non-historical facts are forward-looking statements, as are any statements in this press release concerning prospects related to BIOLASEs strategic initiatives and anticipated financial performance. Forward-looking statements can also be identified through the use of words such as anticipates, expects, intends, plans, believes, seeks, estimates, may, will, and variations of these words or similar expressions. Readers are cautioned not to place undue reliance on these forward-looking statements, which reflect BIOLASEs current expectations regarding existing trends, and its strategic initiatives, and speak only as of the date of this release. Actual results may differ materially from BIOLASEs current expectations depending upon a number of factors affecting BIOLASEs business. These factors include, among others, adverse changes in general economic and market conditions, competitive factors including but not limited to pricing pressures and new product introductions, uncertainty of customer acceptance of new product offerings and market changes,
risks associated with managing the growth of the business, and those other risks and uncertainties that may be detailed, from time-to-time, in BIOLASEs reports filed with the SEC. BIOLASE does not undertake any responsibility to revise or update any forward-looking statements contained herein.
For Further Information Contact:
BIOLASE, Inc.
John R. Beaver
Vice President and Chief Financial Officer
jbeaver@biolase.com
(888) 424-6527
or
Georgeson LLC
(800) 561-3991
1290 Avenue of the Americas, 9th Floor
New York, NY 10104