S-1MEF

As filed with the Securities and Exchange Commission on September 13, 2023

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM S-1

REGISTRATION STATEMENT

UNDER THE

SECURITIES ACT OF 1933

BIOLASE, INC.

(Exact name of registrant as specified in its charter)

Delaware	3843	87-0442441
(State or other jurisdiction of	(Primary Standard Industrial	(IRS Employer
incorporation or organization)	Classification Code Number)	Identification No.)
	27042 Towne Centre Drive, Suite 270
	Lake Forest, California 92610
	(949) 361-1200

(Address, including zip code and telephone number, including area code, of registrant’s principal executive offices)

John R. Beaver

President and Chief Executive Officer

BIOLASE, Inc.

27042 Towne Centre Drive, Suite 270

Lake Forest, California 92610 (949) 361-1200

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

Leslie Marlow, Esq. Patrick J. Egan, Esq. Hank Gracin, Esq. Blank Rome LLP 1271 Avenue of the Americas New York, New York 10020 (212) 885-5000 David E. Danovitch, Esq. Angela Gomes, Esq. Aaron M. Schleicher, Esq. Sullivan & Worcester LLP 1633 Broadway New York, New York 10019 (212) 660-3060

Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement is declared effective.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.  ☒

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☒ (File No. 333-273372)

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer	☐	Accelerated filer	☐
Non-accelerated filer	☒	Smaller reporting company	☒
		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 7(a)(2)(B) of the Securities Act.  ☐

This Registration Statement shall become effective upon filing with the Securities and Exchange Commission in accordance with Rule 462(b) under the Securities Act of 1933, as amended.

EXPLANATORY NOTE AND INCORPORATION BY REFERENCE

This Registration Statement is being filed with respect to the registration of 5,000 additional units (“Units”) on a firm commitment basis, with each Unit consisting of one share of Series J Convertible Redeemable Preferred Stock, par value $0.001 per share (the “Series J Convertible Preferred Stock”), of BIOLASE, Inc., a Delaware corporation (the “Registrant”), and one warrant to purchase one-half of one (0.50) share of the Series J Convertible Preferred Stock (the “Warrants”), pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended. The contents of the earlier registration statement on Form S-1 (File No. 333-273372) initially filed by the Registrant with the Securities and Exchange Commission (the “Commission”) on July 21, 2023, as amended by Pre-Effective Amendment Nos. 1, 2, 3, 4 and 5 filed with the Commission on August 14, 2023, August 18, 2023, August 30, 2023, September 5, 2023 and September 11, 2023, respectively (the “Prior Registration Statement”), which was declared effective by the Commission on September 13, 2023, and all exhibits thereto are incorporated in this Registration Statement by reference. This Registration Statement also registers an additional 2,500 shares of Series J Convertible Preferred Stock issuable from time to time upon exercise of the Warrants. In addition, this Registration Statement registers an additional 230,061 shares of Common Stock issuable upon conversion of the 5,000 Series J Convertible Preferred Stock and the Warrants to purchase 2,500 shares of Series J Convertible Preferred Stock. This Registration Statement also registers an additional 2,830 shares of Series J Convertible Preferred Stock that are issuable as paid in-kind dividends (“PIK dividends”) and 86,817 shares of the Registrant’s common stock, par value $0.001 per share (the “Common Stock”), issuable upon conversion of the Series J Convertible Preferred Stock issued as PIK dividends.

This Registration Statement is being filed solely to increase the amount of securities offered pursuant to the Prior Registration Statement. The additional securities that are being registered for sale pursuant to this Registration Statement are in an amount and at a price that together represents no more than 20% of the maximum aggregate offering price set forth in Exhibit 107 to the Prior Registration Statement.

The required opinion and consents are listed on an Exhibit Index attached hereto and filed herewith.

EXHIBIT INDEX

			Incorporated by Reference
Exhibit	Description	Filed Herewith	Form	Period Ending/Date of Report	Exhibit	Filing Date
5.1	Opinion of Blank Rome LLP	X
23.1	Consent of Independent Registered Public Accounting Firm, BDO USA, P.C.	X
23.2	Consent of Blank Rome LLP (contained in Exhibit 5.1)	X
24.1	Power of Attorney (included on the signature page to the Registration Statement on Form S-1 of the Registrant (File No. 333-273372) and incorporated herein by reference)		S-1	07/21/2023	24.1	07/21/2023
107	Filing Fee Table	X

II-1

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lake Forest, State of California, on September 13, 2023.

BIOLASE, INC.
By:	/S/ JOHN R. BEAVER
	John R. Beaver
	President and Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-1 has been signed by the following persons in the capacities and on the dates indicated.

Signature	Title	Date
/S/ JOHN R. BEAVER	Director, President and Chief	September 13, 2023
John R. Beaver	Executive Officer (Principal
	Executive Officer)
/S/ JENNIFER BRIGHT	Chief Financial Officer (Principal	September 13, 2023
Jennifer Bright	Financial Officer and Principal
	Accounting Officer)
*	Director	September 13, 2023
Dr. Jonathan T. Lord
*	Director	September 13, 2023
Dr. Kathleen T. O’Loughlin
*	Director	September 13, 2023
Jess Roper
*	Director	September 13, 2023
Dr. Martha Somerman
*	Director	September 13, 2023
Dr. Carol Gomez Summerhays
*	Director	September 13, 2023
Dr. Kenneth P. Yale

*By:	/s/ John R. Beaver
	John R. Beaver
	Attorney-in-fact

II-2

EX-5.1

Exhibit 5.1

1271 Avenue of the Americas | New York, NY 10020

blankrome.com

September 13, 2023                                    

BIOLASE, Inc.

27042 Towne Centre Drive, Suite 270

Lake Forest, California 92610

Re: Registration Statement on Form S-1 For Additional Securities Filed Under Rule 462(b)

Dear Ladies and Gentlemen:

We have acted as U.S. securities counsel to BIOLASE, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of the Registration Statement on Form S-1 filed by the Company with the Securities and Exchange Commission (the “Commission”) on September 13, 2023 (the “Registration Statement”) pursuant to the requirements of Rule 462(b) of the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement incorporates by reference the Registration Statement (File No. 333-273372) initially filed by the Company on July 21, 2023, as amended by Pre-Effective Amendment Nos. 1, 2, 3, 4 and 5 filed with the Commission on August 14, 2023, August 18, 2023, August 30, 2023, September 5, 2023 and September 11, 2023, respectively (as amended, the “Original Registration Statement”). The Registration Statement relates to the registration under the Securities Act of up to an additional (i) 5,000 units (“Units”), consisting of (A) 5,000 shares (the “Shares”) of the Company’s Series J Convertible Redeemable Preferred Stock, par value $0.001 per share (the “Series J Convertible Preferred Stock”), (B) 5,000 warrants (the “Warrants”) to purchase 2,500 shares of Series J Convertible Preferred Stock (the “Warrant Shares”), and (C) 230,061 shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), issuable upon conversion of the Series J Convertible Preferred Stock (the “Conversion Shares”). The Warrants are being issued pursuant to the terms of that certain warrant agency agreement (the “Warrant Agency Agreement”) to be entered into by and among the Company, Computershare Inc., a Delaware corporation (“Computershare”), and its affiliate Computershare Trust Company, N.A., a federally chartered trust company (together with Computershare, the “Warrant Agent”), the form of which Warrant Agency Agreement has been filed as Exhibit 4.3 to the Original Registration Statement.

The Company is also registering under the Registration Statement up to an additional 2,830 shares of Series J Convertible Preferred Stock (“PIK Dividend Shares”) that are issuable as paid in-kind dividends (“PIK dividends”) and the 86,871 shares of Common Stock issuable upon conversion of the Series J Convertible Preferred Stock issued as PIK dividends (the “PIK Conversion Shares”). The Units, the shares of Series J Convertible Preferred Stock and the Warrants are to be sold by the Company pursuant to an underwriting agreement (the “Underwriting Agreement”) entered into by and between the Company, Lake Street Capital Markets, LLC and Maxim Group LLC, as representatives of the several underwriters named therein, the form of which has been filed as Exhibit 1.1 to the Original Registration Statement.

In our capacity as counsel to the Company, we have examined the original or certified copies of such records of the Company and such agreements, certificates of public officials, certificates of officers or representatives of the Company and others, and such other documents as we deem relevant and necessary as a basis for the opinions hereinafter expressed, including, but not limited to, the Company’s restated certificate of incorporation, as amended (the “Certificate of Incorporation”), including the Certificate of Designation of Preferences, Rights and Limitations of the Series J Convertible Preferred Stock (the “Certificate of Designation”), the Warrants and the Warrant Agency Agreement. In such examination we have assumed the genuineness of all signatures on original documents and the conformity to original documents of all copies submitted to us as conformed or photostat copies. As to various questions of fact material to such opinions, we have relied upon statements or certificates of officials and representatives of the Company and others.

Blank Rome LLP | blankrome.com

BIOLASE, Inc.

September 13, 2023

Page 2

With regard to our opinions concerning the Warrants, and in certain cases concerning the Series J Convertible Preferred Stock as described below, constituting valid and binding obligations of the Company:

1. Our opinions are subject to, and may be limited by, (a) applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance, debtor and creditor, and similar laws which relate to or affect creditors’ rights generally, and (b) general principles of equity (including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing) regardless of whether considered in a proceeding in equity or at law.

2. Our opinions are subject to the qualification that the availability of specific performance, an injunction or other equitable remedies is subject to the discretion of the court before which the request is brought.

3. We express no opinion as to any provision of the Warrants or the Series J Convertible Preferred Stock that: (a) provides for liquidated damages, buy-in damages, monetary penalties, prepayment or make-whole payments or other economic remedies to the extent such provisions may constitute unlawful penalties, (b) relates to advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitations, trial by jury, or procedural rights, (c) restricts non-written modifications and waivers, (d) provides for the payment of legal and other professional fees where such payment is contrary to law or public policy, (e) relates to exclusivity, election or accumulation of rights or remedies, (f) authorizes or validates conclusive or discretionary determinations, or (g) provides that provisions of the Warrants are severable to the extent an essential part of the agreed exchange is determined to be invalid and unenforceable.

4. We express no opinion as to whether a state court outside of the State of New York or a federal court of the United States would give effect to the choice of New York law or jurisdiction provided for in the Warrants.

Based upon the foregoing, it is our opinion that:

1. When the Units are issued and delivered and paid for (i) in accordance with the terms of the Underwriting Agreement, (ii) in accordance with and in the manner described in the Registration Statement, and (iii) in accordance with the resolutions adopted by the Company, the Units will be legally binding obligations of the Company enforceable in accordance with their terms.

2. When the Shares of Series J Convertible Preferred Stock are issued, delivered and paid for (i) in accordance with the terms of the Underwriting Agreement, (ii) in accordance with and in the manner described in the Registration Statement, and (iii) in accordance with the resolutions adopted by the Company, the shares of Series J Convertible Preferred Stock will be duly authorized, validly issued, fully paid and non-assessable.

3. When the Warrants are issued, delivered and paid for (i) in accordance with the terms of the Underwriting Agreement, (ii) in accordance with and in the manner described in the Registration Statement, (iii) in accordance with the resolutions adopted by the Company and (iv) in accordance with the terms of the Warrants and the Warrant Agency Agreement, the Warrants will be legally binding obligations of the Company enforceable in accordance with their terms.

4. When the Conversion Shares are issued and delivered upon conversion of the Series J Convertible Preferred Stock (i) in accordance with the terms of the Underwriting Agreement, (ii) in accordance with and in the manner described in the Registration Statement, (iii) in accordance with the resolutions adopted by the Company, and (iv) in accordance with the terms of the Series J Convertible Preferred Stock, the Certificate of Incorporation and the Certificate of Designation, and assuming a sufficient number of authorized but unissued shares of Common Stock is available for issuance when the Series J Convertible Preferred Stock is converted, the Conversion Shares will be duly authorized, validly issued, fully paid and non-assessable.

Blank Rome LLP | blankrome.com

BIOLASE, Inc.

September 13, 2023

Page 3

5. When the Warrant Shares are issued, delivered and paid for and upon valid exercise thereof and against receipt of the exercise price therefor (i) in accordance with the terms of the Underwriting Agreement, (ii) in accordance with and in the manner described in the Registration Statement, (iii) in accordance with the resolutions adopted by the Company, and (iv) in accordance with the terms of the Warrants and the Warrant Agency Agreement, and assuming a sufficient number of authorized but unissued shares of Common Stock is available for issuance when the Warrants are exercised, the Warrant Shares will be duly authorized, validly issued, fully paid and non-assessable.

6. When the PIK Dividend Shares are issued and delivered (i) in accordance with the terms of the Series J Convertible Preferred Stock, the Certificate of Incorporation and the Certificate of Designation, (ii) in accordance with and in the manner described in the Registration Statement, (iii) in accordance with the resolutions adopted by the Company, the PIK Dividend Shares, and (iv) if, as and when lawfully declared as dividends by the Board of Directors of the Company, the PIK Dividend Shares will be duly authorized, validly issued, fully paid and non-assessable.

7. When the PIK Conversion Shares are issued and delivered upon conversion of the Series J Convertible Preferred Stock (i) in accordance with the terms of the Series J Convertible Preferred Stock, the Certificate of Incorporation and the Certificate of Designation, (ii) in accordance with and in the manner described in the Registration Statement, and (iii) in accordance with the resolutions adopted by the Company, and assuming a sufficient number of authorized but unissued shares of Common Stock is available for issuance when the Series H Convertible Preferred Stock is converted, the PIK Conversion Shares will be duly authorized, validly issued, fully paid and non-assessable.

We are opining solely on all applicable statutory provisions of Delaware corporate law, including the rules and regulations underlying those provisions, all applicable provisions of the Delaware Constitution and all applicable judicial and regulatory determinations. This opinion is limited to the laws of the State of Delaware as in effect on the date hereof and as to the Warrants constituting valid and legally binding obligations of the Company, the laws of the State of New York as in effect on the date hereof and we express no opinion with respect to the laws of any other jurisdiction. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. We also hereby consent to the use of our name as your counsel under “Legal Matters” in the Prospectus constituting part of the Registration Statement. In giving this consent, we do not thereby concede that we come within the categories of persons whose consent is required by the Securities Act or the General Rules and Regulations promulgated thereunder.

Very truly yours,

/s/ BLANK ROME

BLANK ROME LLP

Blank Rome LLP | blankrome.com

EX-23.1

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

BIOLASE, Inc.

Lake Forest, California

We hereby consent to the incorporation by reference in this Registration Statement of our report dated March 28, 2023, relating to the consolidated financial statements and schedule of BIOLASE, Inc. appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2022. Our report on the consolidated financial statements contains an explanatory paragraph regarding the Company’s ability to continue as a going concern.

We also consent to the reference to us under the caption “Experts” in the Registration Statement on Form S-1 (No. 333-273372) incorporated by reference in this Registration Statement.

/s/ BDO USA, P.C.

Costa Mesa, California

September 13, 2023

EX-FILING FEES

Exhibit 107

Calculation of Filing Fee Tables

FORM S-1

(Form Type)

BIOLASE, INC.

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered and Carry Forward Securities

	Security Type	Security Class Title	Fee Calculation Rule	Amount Registered(1)	Proposed Maximum Offering Price Per Unit	Maximum Aggregate Offering Price (2)(3)	Fee Rate	Amount of Registration Fee
Newly Registered Securities
Fees to be paid	Equity	Units consisting of (i) Series J Convertible Redeemable Preferred Stock, par value $0.001 per share, and (ii) Warrants to purchase shares of Series J Convertible Redeemable Preferred Stock(3)	457(o)	—	—	$300,000	$0.00011020	$33.06
Fees to be paid	Equity	Shares of Series J Convertible Redeemable Preferred Stock, included as part of the Units	457(i)	—	—	—	—	—
Fees to be paid	Equity	Warrants to purchase shares of Series J Convertible Preferred Stock, included as part of the Units	457(i)	—	—	—	—	—
Fees to be paid	Equity	Shares of Common Stock, par value $0.001 per share, issuable upon conversion of the Series J Convertible Preferred Stock included in the Units	457(i)	—	—	—	—	—
Fees to be paid	Equity	Shares of Series J Convertible Redeemable Preferred Stock issuable upon exercise of the Warrants included in the Units	457(i)	—		$150,000	$0.00011020	$16.53
Fees to be paid	Equity	Shares of Common Stock issuable upon conversion of Series J Convertible Redeemable Preferred Stock issuable upon exercise of the Warrants(4)	457(i)	—	—	—	—	—
Fees to be paid	Equity	Shares of Series J Convertible Redeemable Preferred Stock issuable as pay in-kind (PIK) dividends(4)	457(o)	—	—	—	—	—
Fees to be paid	Equity	Shares of Common Stock issuable upon conversion of the Series J Convertible Preferred Stock issued as PIK dividends	457(i)	—	—	—	—	—
	Total Offering Amounts					$450,000	$0.00011020	$49.59
	Total Fees Previously Paid							—
	Total Fee Offsets							—
	Net Fee Due							$49.59

(1) Represents only the additional number of the Registrant’s securities being registered pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended (the “Securities Act”). Does not include the securities that the Registrant previously registered on the Registration Statement on Form S-1, as amended (File No. 333-273372) (the “Registration Statement”), which was declared effective by the Securities and Exchange Commission on September 13, 2023.

(2) Pursuant to Rule 416 under the Securities Act, there are also being registered such indeterminate number of additional securities as may be issued to prevent dilution resulting from stock splits, stock dividends and similar transactions.

(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act.

(3) No separate registration fee is required for the shares of the Registrant’s common stock, par value $0.001 per share (the “common stock”), issuable upon conversion of the Series J Convertible Preferred Stock because no additional consideration will be received in connection with the exercise of the conversion privilege.

(4) No separate registration fee is required for (i) the shares of the Series J Convertible Preferred Stock issuable as stock dividends and (ii) the shares of common stock issuable upon conversion of the Series J Convertible Preferred Stock because no additional consideration will be received by the Registrant in connection with the issuance of the stock dividend or the shares of common stock issuable upon conversion thereof.