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)
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Delaware
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001-36385
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87-0442441
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(State or Other Jurisdiction
of Incorporation)
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(Commission
File Number)
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(I.R.S. Employer
Identification No.)
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4 Cromwell, Irvine, California
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92618
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s 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:
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☐
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule
14a-12
under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule
14d-2(b)
under the Exchange Act (17 CFR
240.14d-2(b))
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☐
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Pre-commencement
communications pursuant to Rule
13e-4(c)
under the Exchange Act (17 CFR
240.13e-4(c))
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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 Company’s 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 Company’s previously filed Registration Statement on Form
S-1
with the Securities and Exchange Commission (the “SEC”) and effective as of the closing of the Company’s 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 Company’s 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 Company’s 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 Company’s 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 Company’s 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 Company’s 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 Company’s existing stockholders the opportunity to participate on a pro rata basis. The net proceeds of the offering
will be used for the Company’s 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 Company’s 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 Company’s 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
Company’s 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 Company’s 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 Company’s current expectations depending upon a number of factors affecting the Company’s 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 Company’s 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.
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Exhibit
No.
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Description
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99.1
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Amendment to Standstill Agreement, dated November 9, 2017, by and among Jack W. Schuler, Renate Schuler, Schuler Family Foundation and Biolase, Inc. (filed herewith)
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99.2
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Amendment to Standstill Agreement, dated November
9, 2017, by and among 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. and Biolase, Inc. (filed herewith)
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99.3
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Press Release issued by the Registrant on November 9, 2017, entitled “BIOLASE Announces Commencement of Rights Offering” (filed herewith)
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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.
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BIOLASE, Inc.
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By:
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/s/ Harold C. Flynn, Jr.
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Date: November 9, 2017
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Name: Harold C. Flynn, Jr.
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Title: President and CEO
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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
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Re:
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Amendment to Standstill Agreement
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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 Biolase’s 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
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Sincerely,
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Biolase, Inc.
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By:
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/s/ Harold C. Flynn, Jr.
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Name:
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Harold C. Flynn, Jr.
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Title:
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President and Chief Executive Officer
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The foregoing is hereby accepted:
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/s/ Jack W. Schuler
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Jack W. Schuler
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/s/ Renate Schuler
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Renate Schuler
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Schuler Family Foundation
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By:
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/s/ Jack W. Schuler
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Name:
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Jack W. Schuler
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Title:
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Executive Director & President
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[
Amendment to Standstill Agreement
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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
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Re:
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Amendment to Standstill Agreement
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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 Biolase’s 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
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Sincerely,
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BIOLASE, INC.
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By:
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/s/ Harold C. Flynn, Jr.
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Name:
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Harold C. Flynn, Jr.
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Title:
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President and Chief Executive Officer
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The foregoing is hereby accepted:
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/s/ Larry N. Feinberg
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LARRY N. FEINBERG
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ORACLE PARTNERS, L.P.
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By: ORACLE ASSOCIATES, LLC, its general partner
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By:
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/s/ Larry N. Feinberg
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Larry N. Feinberg, Managing Member
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ORACLE INSTITUTIONAL PARTNERS, L.P.
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By: ORACLE ASSOCIATES, LLC, its general partner
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By:
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/s/ Larry N. Feinberg
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Larry N. Feinberg, Managing Member
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ORACLE TEN FUND MASTER, L.P.
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By: ORACLE ASSOCIATES, LLC, its general partner
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By:
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/s/ Larry N. Feinberg
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Larry N. Feinberg, Managing Member
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ORACLE ASSOCIATES, LLC
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By:
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/s/ Larry N. Feinberg
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Larry N. Feinberg, Managing Member
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ORACLE INVESTMENT MANAGEMENT, INC.
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By:
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/s/ Larry N. Feinberg
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Larry N. Feinberg, Managing Member
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[
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 Company’s common stock owned. Each whole subscription right entitles the
holder to purchase one share of the Company’s 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 Company’s existing stockholders the opportunity to participate on a pro rata basis. The net proceeds of the offering will be used for the Company’s 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 Company’s 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. BIOLASE’s products advance the practice of dentistry and medicine for patients and healthcare professionals.
BIOLASE’s 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. BIOLASE’s innovative
products provide cutting-edge technology at competitive prices to deliver the best results for dentists and patients. BIOLASE’s 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 BIOLASE’s 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 BIOLASE’s 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 BIOLASE’s 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 BIOLASE’s 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 BIOLASE’s current expectations depending upon a number of factors affecting BIOLASE’s 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 BIOLASE’s 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