WARRANT AGENCY AGREEMENT
WARRANT AGENCY AGREEMENT, dated as of , 2020 (Agreement), by and among BIOLASE, Inc., a Delaware corporation (the Company), Computershare Inc., a Delaware corporation (Computershare), and its wholly-owned subsidiary, Computershare Trust Company, N.A., a federally chartered trust company (together with Computershare, the Warrant Agent).
W I T N E S S E T H
WHEREAS, the Company is engaged in a public rights offering (the Offering) pursuant to which the Company has distributed, at no charge, non-transferable subscription rights to purchase units (the Units) to each of the Companys holders of common stock (the Common Stock) and the holders of warrants issued in a private placement transaction that was consummated on June 10, 2020 (the June 2020 Warrants) pursuant to an effective registration statement on Form S-1 (File No. 333-238914) (the Registration Statement);
WHEREAS, the Units consist of shares of Series F Convertible Preferred Stock (the Preferred Stock) and warrants (collectively, the Warrants) to purchase shares of Common Stock, and the Company wishes to issue the Warrants in book entry form entitling the respective holders of the Warrants to purchase an aggregate of up to 37,500,000 shares of Common Stock upon the terms and subject to the conditions hereinafter set forth;
WHEREAS, the Preferred Stock and Warrants to be issued in connection with the Offering shall be immediately separable and will be issued separately, but will be purchased together in the Offering; and
WHEREAS, the Company wishes the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with the issuance, registration, transfer, exchange, exercise and replacement of the Warrants and, in the Warrant Agents capacity as the Companys transfer agent, the delivery of the Warrant Shares (as defined below).
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the following terms have the meanings indicated:
(a) Business Day means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
(b) Close of Business on any given date means 5:00 p.m., New York City time, on such date; provided, however, that if such date is not a Business Day it means 5:00 p.m., New York City time, on the next succeeding Business Day.