BIOLASE, INC false 0000811240 0000811240 2022-06-27 2022-06-27

 

 

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): June 27, 2022

 

 

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.)

 

27042 Towne Centre Drive, Suite 270

Lake Forest, California

  92610
(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 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))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading

symbol(s)

 

Name of each exchange

on which registered

Common Stock, par value $0.001 per share   BIOL  

The Nasdaq Stock Market LLC

(Nasdaq Capital Market)

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 June 27, 2022, BIOLASE, Inc. (the “Company”) entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain accredited institutional investors (the “Purchasers”), pursuant to which the Company will issue to the Purchasers, (i) in a registered direct offering, 678,745 shares of the Company’s common stock (the “Shares”), par value $0.001 per share (“Common Stock”), and pre-funded warrants to purchase 726,660 shares of Common Stock (the “Pre-Funded Warrants”) with an exercise price of $0.001 per share, and (ii) in a concurrent private placement, warrants to purchase 1,405,405 shares of Common Stock (the “Common Warrants”). Such registered direct offering and concurrent private placement are referred to herein as the “Transactions.” The combined purchase price for one Share and one Common Warrant will be $4.625, and the combined purchase price for one Pre-Funded Warrant and one Common Warrant will be $4.624.

The Company expects to receive aggregate gross proceeds from the Transactions of approximately $6.5 million, before deducting fees to the Placement Agent and other estimated offering expenses payable by the Company. The Shares, the Pre-Funded Warrants and the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants (the “Pre-Funded Warrant Shares”) are being offered by the Company pursuant to a shelf registration statement on Form S-3 (File No. 333-233172), which was declared effective on August 23, 2019 (as amended from time to time, the “Registration Statement”). The Common Warrants and the shares of Common Stock issuable upon exercise of the Common Warrants (the “Common Warrant Shares”) are being issued in a concurrent private placement and have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and are instead being offered pursuant to the exemption provided in Section 4(a)(2) under the Securities Act and Rule 506(b) promulgated thereunder. The Common Warrants will be exercisable commencing on the date of issuance and will expire on the fifth anniversary of the issuance date. The Pre-Funded Warrants will not expire and will be exercisable commencing on the date of issuance and at any time until all of the Pre-Funded Warrants are exercised in full.

Pursuant to the terms of the Purchase Agreement, until 90 days following the closing of the Transactions, the Company has agreed not to issue (or enter into any agreement to issue) any shares of Common Stock or Common Stock equivalents, subject to certain exceptions. In addition, the Company’s Chief Executive Officer and each of the Company’s directors have entered into lock-up agreements (the “Lock-up Agreements”) with the Company pursuant to which each of them has agreed not to, for a period of 45 days from the closing of the Transactions, offer, sell, transfer or otherwise dispose of the Company’s securities, subject to certain exceptions.

The exercise price of the Pre-Funded Warrants and the Common Warrants, and the number of Pre-Funded Warrant Shares and Common Warrant Shares, will be subject to adjustment in the event of any stock dividend or split, reverse stock split, recapitalization, reorganization or similar transaction, as described in the Pre-Funded Warrants or Common Warrants. The Pre-Funded Warrants and Common Warrants will be exercisable on a “cashless” basis in certain circumstances.

The Company has agreed to file a registration statement to register the resale of the Common Warrant Shares within 45 days of the date of the Purchase Agreement and to use commercially reasonable efforts to cause such registration statement to become effective within 121 days following the closing of the Transactions. The Purchasers have agreed not to resell or distribute the Common Warrants or the Common Warrant Shares to the public except pursuant to an effective registration statement under the Securities Act or an exemption therefrom.

Maxim Group LLC acted as the placement agent (the “Placement Agent”) on a “reasonable best efforts” basis, in connection with the Transactions pursuant to the Placement Agency Agreement, dated June 27, 2022 (the “Placement Agency Agreement”), by and between the Company and the Placement Agent. Pursuant to the Placement Agency Agreement, the Placement Agent will be entitled to a cash fee of 7% of the aggregate gross proceeds paid to the Company for the securities sold in the Transactions and reimbursement of certain out-of-pocket expenses.

The foregoing summaries of the Transactions, the securities to be issued in connection therewith, the Purchase Agreement, the Placement Agency Agreement, the Lock-up Agreements, the Pre-Funded Warrants and the Common Warrants do not purport to be complete and are qualified in their entirety by reference to the definitive transaction documents, copies of which are attached hereto as Exhibits 10.1, 10.2, 10.3, 4.1 and 4.2, respectively, and are each incorporated herein by reference.


Item 3.02. Unregistered Sales of Equity Securities

The disclosure regarding the Pre-Funded Warrants, Common Warrants, Pre-Funded Warrant Shares and Common Warrant Shares set forth under Item 1.01 is incorporated by reference into this Item 3.02.

Item 8.01. Other Events

On June 28, 2022, the Company issued a press release regarding the transaction described in Item 1.01, a copy of which is attached hereto as Exhibit 99.1 and incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits

The following exhibits are filed herewith:

 

Exhibit
Number
   Description
4.1    Form of Pre-Funded Warrant to Purchase Common Stock
4.2    Form of Warrant to Purchase Common Stock
5.1    Opinion of Sidley Austin LLP
10.1    Form of Securities Purchase Agreement, dated as of June 27, 2022, by and among the Company and the investors parties thereto
10.2    Placement Agency Agreement, dated June 27, 2022, by and among the Company and Maxim Group LLC
10.3    Form of Lock-up Agreement
23.1    Consent of Sidley Austin LLP (included in Exhibit 5.1)
99.1    Press Release dated June 28, 2022
104    Cover Page Interactive Data File (embedded within the Inline XBRL document)


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: June 29, 2022     BIOLASE, INC.
    By:  

/s/ John R. Beaver

    Name:   John R. Beaver
    Title:   President and Chief Executive Officer