Form POS EX - Post-effective amendment adding exhibits to registration statement [Rule 462(d)]

Large accelerated filer

Accelerated filer

Non-accelerated filer

Smaller reporting company

Emerging growth company

As filed with the Securities and Exchange Commission on September 14, 2023

Registration No. 333-273372

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

POST-EFFECTIVE AMENDMENT NO. 1

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

incorporation or organization)

(Primary Standard Industrial

Classification Code Number)

(IRS Employer

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 the effective date of this registration statement.

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. ☐

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. ☒ (File No. 333-273372)

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. ☐

EXPLANATORY NOTE

This Post-Effective Amendment No. 1 to the Registration Statement on Form S-1 (File No. 333-273372) (the “Registration Statement”) of BIOLASE, Inc. (the “Company”), as originally declared effective by the Securities and Exchange Commission (the “SEC”) on September 13, 2023, is being filed for the sole purpose of filing Exhibit 5.1 as part of the Registration Statement. This Post-Effective Amendment No. 1 does not modify any provision of Part I or Part II of the Registration Statement other than supplementing Item 16 of Part II as set forth below. This Registration Statement shall become effective upon filing with the SEC in accordance with Rule 462(d) under the Securities Act of 1933, as amended.

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 16.

Exhibits and Financial Statement Schedules.

(a) Exhibits

The following exhibits are being filed (unless noted otherwise) with this Registration Statement:

Incorporated by Reference

Exhibit

Description

Filed
Herewith

Form

Period
Ending/Date
of Report

Exhibit

Filing
Date

5.1

Opinion of Blank Rome LLP

23.1

Consent of Blank Rome LLP (contained in Exhibit 5.1)

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

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 14, 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 John R. Beaver	Director, President and Chief Executive Officer (Principal Executive Officer)	September 14, 2023

/S/ JENNIFER BRIGHT Jennifer Bright	Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)	September 14, 2023

* Dr. Jonathan T. Lord	Director	September 14, 2023

* Dr. Kathleen T. O’Loughlin	Director	September 14, 2023

* Jess Roper	Director	September 14, 2023

* Dr. Martha Somerman	Director	September 14, 2023

* Dr. Carol Gomez Summerhays	Director	September 14, 2023

* Dr. Kenneth P. Yale	Director	September 14, 2023


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

II-2

Exhibit 5.1

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1271 Avenue of the Americas | New York, NY 10020

blankrome.com

September 14, 2023

BIOLASE, Inc.

27042 Towne Centre Drive, Suite 270

Lake Forest, California 92610

Re: Registration Statement on Form S-1 (File No. 333-273372)

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 (File No. 333-273372) originally filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on July 21, 2023 and declared effective by the Commission on September 13, 2023 (the “Registration Statement”). The Registration Statement relates to the proposed offering by the Company under the Securities Act of (i) 70,000 units (“Units”), consisting of (A) 70,000 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) 70,000 warrants (the “Warrants”) to purchase 35,000 shares of Series J Convertible Preferred Stock (the “Warrant Shares”), and (C) 3,220,859 shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), issuable upon (y) conversion of the 70,000 shares of Series J Convertible Preferred Stock and (z) conversion of the 35,000 shares of Series J Convertible Preferred Stock issued upon exercise of the Warrants (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 Registration Statement.

The Company is also registering under the Registration Statement up to (i) 39,623 shares of Series J Convertible Preferred Stock (“PIK Dividend Shares”) that are issuable as paid in-kind dividends (“PIK dividends”) and (ii) 1,215,433 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 on September 13, 2023 by and among 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 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

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BIOLASE, Inc.

September 14, 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:

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.

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.

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.

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:

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.

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.

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.

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

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BIOLASE, Inc.

September 14, 2023

Page 3

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.

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.

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.