UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 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): May 10, 2018

 

 

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) 		  (IRS Employer
Identification No.)

 

4 Cromwell
Irvine, California 		  96218
(Address of principal executive offices)   (Zip Code)

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:

 

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

☐ Soliciting material pursuant to Rule l4a-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 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

As previously announced, on May 9, 2018, the stockholders of BIOLASE, Inc., a Delaware corporation (the “Company”) approved a proposal at the 2018 annual meeting of stockholders (the “Annual Meeting”) to amend the Company’s Restated Certificate of Incorporation (the “Certificate of Incorporation”) to effect a reverse stock split of the Company’s common stock, par value $0.001 (“Common Stock”), at a ratio ranging from one-for-five (1:5) to one-for-fifteen (1:15), with the final ratio to be determined by the Board of Directors (the “Board”). Immediately after the Annual Meeting, the Board approved a one-for-five (1:5) reverse stock split of the outstanding shares of Common Stock (the “Reverse Stock Split”). On May 10, 2018, the Company filed an amendment to its Restated Certificate of Incorporation (the “Amendment”) with the Secretary of State of the State of Delaware to effect the Reverse Stock Split, with an effective date of 11:59 p.m. Eastern Time on May 10, 2018. The Amendment also reduced the authorized shares of Common Stock from 200,000,000 to 40,000,000.

As set forth in the Amendment, no fractional shares will be issued in connection with the Reverse Stock Split. In lieu of fractional shares, Computershare Trust Company, N.A., as exchange agent (“Computershare”), will aggregate all fractional shares and arrange for them to be sold in a timely manner at the then prevailing prices on the Nasdaq Capital Market. After such sale, Computershare will pay to each holder of record such holder’s pro rata share of the net proceeds derived from the sale of the fractional interest to which such holder would otherwise be entitled.

The description of the Amendment set forth above does not purport to be complete and is qualified in its entirety by the full text of the Amendment, a copy of which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.

 

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit No.

  

Description of Exhibits

3.1    Fourth Amendment to Restated Certificate of Incorporation of BIOLASE, Inc.

 

2

SIGNATURE

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.

 

Dated: May 11, 2018     BIOLASE, INC.
    By:   /s/ John R. Beaver
    Name:   John R. Beaver
    Title:   Interim Chief Executive Officer

 

3

Exhibit 3.1

FOURTH AMENDMENT

TO

RESTATED CERTIFICATE OF INCORPORATION

OF

BIOLASE, INC.

BIOLASE, Inc. (the “ Corporation ”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, hereby certifies as follows:

 

  1. This Certificate of Amendment amends the provisions of the Corporation’s Restated Certificate of Incorporation, as amended and filed with the Secretary of State of the State of Delaware (the “ Restated Certificate of Incorporation ”).

 

  2. Article III of the Restated Certificate of Incorporation is hereby amended and restated in its entirety as follows:

THIRD. The total number of shares of stock which the Corporation shall have the authority to issue is FORTY ONE MILLION (41,000,000) shares of which stock FORTY MILLION (40,000,000) shares of $.001 par value shall be common stock and of which ONE MILLION (1,000,000) shares of $.001 par value shall be preferred stock.

Upon the filing and effectiveness (the “ Effective Time ”) pursuant to the General Corporation Law of the State of Delaware of this Fourth Amendment to Restated Certificate of Incorporation of the Corporation, each five (5) shares of common stock either issued and outstanding or held by the Corporation in treasury stock immediately prior to the Effective Time shall, automatically and without any action on the part of the respective holders thereof, be combined and converted into one (1) share of common stock (the “ Reverse Stock Split ”).

No fractional shares shall be issued in connection with the Reverse Stock Split. In lieu thereof, the aggregate of all fractional shares otherwise issuable to the holders of record of common stock shall be issued to the transfer agent, as agent for the accounts of all holders of record of common stock and otherwise entitled to have a fraction of a share issued to them. The sale of all of the fractional interests will be effected by the transfer agent as soon as practicable after the Effective Time on the basis of the prevailing market prices of the common stock at the time of the sale. After such sale, the transfer agent will pay to such holders of record their pro rata share of the total net proceeds derived from the sale of the fractional interests.

 

  3. The foregoing amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

 

  4. All other provisions of the Restated Certificate of Incorporation shall remain in full force and effect.

 

  5. The foregoing amendment shall be effective as of 11:59 p.m., Eastern Time, on the date of filing with the Secretary of State of the State of Delaware.

* * * * *

IN WITNESS WHEREOF , the Corporation has caused this Certificate of Amendment to be signed this 10th day of May 2018.

 

BIOLASE, INC.
By:   /s/ Michael C. Carroll
Name:   Michael C. Carroll
Title:   Secretary