BIOL Biolase Inc

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)

(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:

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.

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

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.

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.

II-2

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

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:

Based upon the foregoing, it is our opinion that:

Blank Rome LLP | blankrome.com

BIOLASE, Inc.

September 13, 2023

Page 3

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.

Blank Rome LLP | blankrome.com

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

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