8-K/A

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K/A
(Amendment No. 1)

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported): September 6, 2013

Biolase, Inc.
__________________________________________
(Exact name of registrant as specified in its charter)

Delaware	000-19627	87-0442441
_____________________ (State or other jurisdiction	_____________ (Commission	______________ (I.R.S. Employer
of incorporation)	File Number)	Identification No.)
4 Cromwell, Irvine, California		92618
_________________________________ (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))

Item 1.01 Entry into a Material Definitive Agreement.

This Current Report on Form 8-K/A amends the Current Report on Form 8-K filed by Biolase, Inc. (the "Company") with the Securities and Exchange Commission on September 10, 2013 to include additional information about the Amendment (as defined below) and attaches the Amendment as an exhibit.

On September 6, 2013, the Company amended its credit agreement with Comerica Bank ("Comerica") by entering into Amendment No. 3 to the Loan and Security Agreement (the "Amendment"), in connection with a waiver of noncompliance the Company previously received from Comerica on August 5, 2013.

The Amendment reverted the available maximum borrowings under the Company’s domestic revolver to $4 million from $6 million (in addition to up to another $4 million on the Company’s Ex-Im revolver) and revised a financial covenant related to minimum earnings before interest, taxes, depreciation, and amortization ("EBITDA"). Specifically, the revised EBITDA covenant provides that that Company must maintain minimum EBITDA of $(1,000,000) and $1,250,000 at September 30, 2013 and December 31, 2013, respectively. In addition, the Amendment requires new equity investment of $3 million by September 30, 2013, and an additional $2 million in equity investment by October 31, 2013.

In connection with the Amendment, the Company issued to Comerica a five-year warrant (the "Warrant") to purchase an aggregate of 100,000 shares of the Company's common stock at a per share price of $2.00. The Warrant may be exercised for cash or on a net exercise basis. The Company incurred a fee paid to Comerica of $8,000 in connection with Comerica's processing of the Amendment.

The Amendment is incorporated by reference and is attached hereto as Exhibit 10.1.

Item 3.02 Unregistered Sales of Equity Securities.

The information in Item 1.01 of this Current Report on Form 8-K relating to the Warrant is hereby incorporated into this Item 3.02 by reference.

Item 8.01 Other Events.

On September 10, 2013, the Company issued a press release announcing the Amendment and Warrant disclosed in Item 1.01 above. A copy of that press release is filed as Exhibit 99.1 to this Current Report on Form 8-K.

Item 9.01 Financial Statements and Exhibits.

d) Exhibits.
10.1 Amendment No. 3 to Loan and Security Agreement, dated September 6, 2013.
99.1 Press Release, dated September 10, 2013.

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.
September 19, 2013	By:	/s/ Federico Pignatelli
		Name: Federico Pignatelli
		Title: Chairman and Chief Executive Officer

Exhibit Index

Exhibit No.	Description
10.1	Amendment No. 3 to Loan and Security Agreement, dated September 6, 2013.
99.1	Press Release, dated September 10, 2013, of Biolase, Inc.

EX-10.1

AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT

This Amendment No. 3 to Loan and Security Agreement (“Amendment”) is made on September 6, 2013 (“Amendment No. 3 Effective Date”) between Biolase, Inc., a Delaware corporation (“Borrower”) and Comerica Bank, a Texas banking association (“Bank”).

Borrower and Bank entered into a Loan and Security Agreement dated May 24, 2012, as amended by Amendment No. 1 to Loan and Security Agreement dated August 6, 2012, and Amendment No. 2 to Loan and Security Agreement dated May 7, 2013 (“Loan Agreement”) providing terms and conditions governing certain loans and other credit accommodations extended by Bank to Borrower (“Obligations”). Borrower and Bank have agreed to amend the terms of the Loan Agreement as provided in this Amendment.

Accordingly, Borrower and Bank agree as follows:

1. Capitalized Terms. In this Amendment, capitalized terms that are used without separate definition shall have the meanings given to them in the Loan Agreement.

2. Amendments. The Loan Agreement is amended as follows:

(a) Section 6.7(b) is amended to read in its entirety as follows:

“(b) EBITDA. As of the end of each fiscal quarter, commencing with the fiscal quarter ending September 30, 2013, an EBITDA of not less than the amount set forth below for the applicable measurement date, measured in each case for the three (3) months then-ending:

Measurement Date	Minimum EBITDA
September 30, 2013	-$1,000,000.00
December 31, 2013	+$1,250,000.00
March 31, 2014 and thereafter	[to be determined as follows]

For each fiscal quarter ending on or after March 31, 2014, Bank shall establish an EBITDA measurement based upon Borrower’s Board of Directors-approved financial and business projections and budget, sales projections, and operating plans for the fiscal year ending December 31, 2014 (“2013 Plan”), which 2014 Plan shall be delivered to Bank no later than November 30, 2013, and shall be reasonably satisfactory to Bank.”

(b) The following is added to the Loan Agreement as new Section 6.12:

“6.12 Minimum Equity Event. Borrower shall receive New Equity totaling at least $5,000,000 as follows:

(a) at least $3,000,000 by September 30, 2013, and

(b) at least an additional $2,000,000 by October 31, 2013.”

(c) The following terms which are defined in Exhibit A are given the following amended definitions:

“Borrowing Base” means an amount equal to:

(a) Eighty percent (80.0%) of Eligible Accounts plus

(b) the least of the following:

(i) Fifty percent (50.0%) of Eligible Inventory, or

(ii) $1,500,000.00, or

(iii) the amount determined under clause (a);

as each of the foregoing is determined by Bank with reference to the most recent Borrowing Base Certificate delivered by Borrower.

“Revolving Line” means a Credit Extension of up to Four Million and 00/100 Dollars ($4,000,000.00).

(d) The following term and definition is added to Exhibit A in the appropriate alphabetical order:

“ “New Equity” means cash proceeds received after September 6, 2013, from the sale or issuance of Borrower’s equity securities.”

(e) Exhibit D (the form of Borrowing Base Certificate) is amended entirely to be in the form of attached Amended Exhibit D.

(f) Exhibit E (the form of Compliance Certificate) is amended entirely to be in the form of attached Amended Exhibit E.

3. Representations. Borrower represents and agrees that:

(a) Except as expressly modified in this Amendment, (i) the representations and warranties set forth in the Loan Agreement and in each of the Loan Documents remain true and correct in all respects, except to the extent that they expressly speak as of a specific prior date, and (ii) the covenants set forth in the Loan Agreement continue to be satisfied in all respects, and are legal, valid and binding obligations with the same force and effect as if entirely restated in this Amendment.

(b) When executed, this Amendment will be a duly authorized, legal, valid, and binding obligation of Borrower enforceable in accordance with its terms, and will not conflict with or violate any of Borrower’s organization documents or any agreement, instrument, law, or order to which Borrower or any material portion of its assets is subject or bound.

(c) The corporate resolutions delivered to Bank on or about May 24, 2012 remain in full force and effect, have not been amended, repealed or rescinded in any respect and may continue to be relied upon by Bank until written notice to the contrary is received by Bank, the officers named therein continue to hold those offices, and Borrower continues to be in good standing under the laws of the State of Delaware.

(d) Except for events or conditions for which Bank has given or is concurrently giving its written waiver, no Event of Default exists or has occurred and is continuing uncured or unwaived as of the Effective Date.

4. Conditions Precedent. The effectiveness of this Amendment is subject to Bank’s receipt of or Borrower’s satisfaction of all of the following:

(a) this Amendment;

(b) execution and delivery by the Guarantors of the Acknowledgement and Consent of Guarantors as set forth below;

(c) a Warrant for the purchase of 100,000 shares of Borrower’s common stock with a term of five years and an exercise price set at the average of the closing prices for Borrower’s common stock on the NASDAQ for the first 10 trading days after the Amendment No. 3 Effective Date.

(d) payment of a facility fee of $8,000.00 in connection the Revolving Line; and

(e) such other documents and completion of such other matters as Bank may reasonably deem necessary or appropriate.

5. No Other Changes. Except as specifically provided in this Amendment, it does not vary the terms and provisions of any Loan Documents. This Amendment shall not impair the rights, remedies, and security given in and by the Loan Documents. The terms of this Amendment shall control any conflict between its terms and those of the Loan Agreement.

6. Ratification. Except for the modifications under this Amendment, the parties ratify and confirm the Loan Agreement and the Loan Documents and agree that they remain in full force and effect.

7. Further Modification; No Reliance. This Amendment may be altered or modified only by written instrument duly executed by Borrower and Bank. In executing this Amendment, Borrower is not relying on any promise or commitment of Bank that is not in writing signed by Bank. This Amendment shall not be more strictly construed against any one of the parties as compared to any other.

8. Successors and Assigns. This Amendment shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.

9. Governing Law. The parties agree that the terms and provisions of this Amendment shall be governed by and construed in accordance with the internal laws of the State of California, without regard to principles of conflicts of law.

10. No Defenses. Borrower acknowledges, confirms, and warrants to Bank that as of the date hereof Borrower has absolutely no defenses, claims, rights of set-off, or counterclaims against Bank under, arising out of, or in connection with, this Amendment, the Loan Agreement, the Loan Documents and/or the individual advances under the Indebtedness, or against any of the indebtedness evidenced or secured thereby.

11. Expenses. Borrower shall promptly pay all reasonable and actually incurred out-of-pocket fees, costs, charges, expenses, and disbursements of Bank incurred in connection with the preparation, execution, and delivery of this Amendment, and the other documents contemplated by this Amendment.

12. Counterparts. This Amendment may be executed in one or more counterparts, and by separate parties on separate counterparts, all of which shall constitute one and the same agreement.

[end of amendment—signature page follows]

This Amendment No. 3 to Loan and Security Agreement is executed and delivered as of the Amendment No. 3 Effective Date.

Comerica Bank	Biolase, Inc.
By: /s/ Lake T. McGuire Name: Lake T. McGuire Title: Vice President	By: /s/ Frederick D. Furry Name: Frederick D. Furry Title: Chief Financial Officer

Acknowledgement and Consent of Guarantors

Each of the undersigned has guaranteed the payment and performance of the Obligations by Borrower pursuant to Guaranty dated May 24, 2012. Each of the undersigned (a) acknowledges and consents to the execution, delivery and performance of the foregoing Amendment No. 1 to Loan and Security Agreement, and (b) agrees that (i) its guaranty remains in full force and effect and (ii) it has absolutely no defenses, claims, rights of set-off, or counterclaims against Bank under, arising out of, or in connection with, the foregoing Amendment No. 1 to the Loan and Security Agreement, the Loan Agreement, its guaranty, or the other Loan Documents. Each of the undersigned further represents that it is in compliance with all of the terms and conditions of its guaranty.

Dated as of September 6, 2013.

BL II Acquisition Inc.	BL Acquisition Corp.
By: /s/ Frederick D. Furry Name: Frederick D. Furry Title: Chief Financial Officer	By: /s/ Frederick D. Furry Name: Frederick D. Furry Title: Chief Financial Officer

NEWS RELEASE

BIOLASE AMENDS CREDIT AGREEMENTS WITH COMERICA BANK

IRVINE, CA (September 10, 2013) — BIOLASE, Inc. (NASDAQ:BIOL), the world’s leading manufacturer and distributor of dental lasers, and a pioneer in laser surgery in other medical specialties, today announced that effective September 6, 2013 it amended the terms of its two revolving credit facility agreements (the “Credit Agreements”) with Comerica Bank (“Comerica”).

BIOLASE’s Credit Agreements with Comerica, as previously amended, provide for borrowings against certain domestic accounts receivable and inventory (the “Domestic Revolver”) and certain export related accounts receivable and inventory (the “Ex-Im Revolver”). Amendment No. 3 to the Loan and Security Agreement (“Amendment No. 3”) reverted the available maximum borrowings under the Domestic Revolver to $4 million from $6 million (in addition to up to another $4 million on the Ex-Im Revolver). The interest rates on the outstanding principal balance of the credit facilities will continue to bear interest at annual percentage rates equal to the daily prime rate plus 2.00% for the Domestic Revolver and 1.50% for the Ex-Im Revolver. Amendment No. 3 also revised certain financial covenants for the quarters ending September 30, 2013 and December 31, 2013, as defined therein. The maturity date for the Credit Agreements remains May 1, 2014.

Federico Pignatelli, Chairman and CEO, said, “We are very pleased that we have completed the process of amending our Credit Agreements with Comerica Bank. BIOLASE is now entering what has traditionally been its strongest revenue period of the year, September through December, and finalizing the Amendment No. 3 provides us with the flexibility to continue our growth while on the way to generating cash and profitability. Comerica has been a good lending partner. We appreciate their continued support of our long-term strategic business objectives and look forward to building further on our relationship.”

In connection with Amendment No. 3, the Company also issued warrants to Comerica (the “2013 Comerica Warrants”) to purchase up to 100,000 shares of the Company’s common stock at an exercise price of $2.00 per share. The 2013 Comerica Warrants vest in four equal quarterly tranches beginning on December 31, 2013 and will expire if unused on September 6, 2018. The Company incurred a fee of $8,000 to process the amendment.

About BIOLASE, Inc.
BIOLASE, Inc. is a biomedical company that develops, manufactures, and markets innovative lasers in dentistry and medicine and also markets and distributes high-end 2D and 3D digital imaging equipment and CAD/CAM intraoral scanners; products that are focused on technologies that advance the practice of dentistry and medicine. The Company’s proprietary laser products incorporate approximately 340 patented and patent-pending technologies designed to provide biologically clinically superior performance with less pain and faster recovery times. Its 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 more than 23,000 lasers. Other laser products under development address ophthalmology and other medical and consumer markets.

For updates and information on WaterLase and laser dentistry, find BIOLASE online at www.biolase.com, Facebook at www.facebook.com/biolaseinc, Twitter at www.twitter.com/biolaseinc, Pinterest at www.pinterest.com/biolase, LinkedIn at www.linkedin.com/company/biolase, Instagram at www.instagram.com/biolaseinc and YouTube at www.youtube.com/biolasevideos.

BIOLASE^® and WaterLase^® are registered trademarks of BIOLASE, Inc.

For further information, please contact:
Michael Porter
Porter, LeVay & Rose, Inc.
212-564-4700