As filed with the Securities and Exchange Commission on July 15, 2020

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

incorporation or organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification Number)

4 Cromwell, Irvine, California 92618

(949) 361-1200

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

 

 

Todd A. Norbe

President and Chief Executive Officer

BIOLASE, Inc.

4 Cromwell

Irvine, California 92618

(949) 361-1200

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

 

 

Copy to:

 

Mitchell S. Nussbaum

Angela M. Dowd

Loeb & Loeb LLP

345 Park Avenue

New York, NY 10154

 

Barry L. Grossman

Sarah E. Williams

Ellenoff Grossman & Schole LLP

1345 Avenue of the Americas, 11th Floor

New York, NY 10105

 

 

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, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ☒ 333-238914

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 to Section 7(a)(2)(B) of the Securities Act.  ☐

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Each Class of

Securities to be Registered

 

Proposed

Maximum

Aggregate

Offering Price (1)(2)

 

Amount of

Registration Fee

Units consisting of shares of Series F Convertible Preferred Stock, par value $0.001 per share, and warrants to purchase shares of Common Stock, par value $0.001 per share

  $3,000,000   $389.40

Non-transferable Rights to purchase Units (3)

   

Series F Convertible Preferred Stock included as part of the Units

  Included with Units above  

Warrants to purchase shares of Common Stock included as part of the Units (4)

  Included with Units above  

Common stock issuable upon conversion of the Series F Convertible Preferred Stock (5)(6)

   

Common Stock issuable upon exercise of the Warrants (6)

  $3,000,000   $389.40

Total

  $6,000,000   $778.80(7)

 

 

(1)

The registrant previously registered an aggregate of $30,000,000 of securities on the Registration Statement on Form S-1, Registration No. 333-238914 (the “Initial Registration Statement”). Pursuant to Rule 462(b) under the Securities Act of 1933, as amended, the amount of securities being registered hereunder represents no more than 20% of the securities initially registered pursuant to the Initial Registration Statement.

(2)

Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as amended (the “Act”).

(3)

Non-transferable Rights to purchase Units are being issued without consideration. Pursuant to Rule 457(g) under the Act, no separate registration fee is required for the Rights because the Rights are being registered in the same registration statement as the securities of the Registrant underlying the Rights.

(4)

Pursuant to Rule 457(g) of the Act, no separate registration fee is required for the warrants because the warrants are being registered in the same registration statement as the Common Stock of the Registrant issuable upon exercise of the warrants.

(5)

Pursuant to Rule 457(i) of the Act, no separate registration fee is required for the common stock issuable upon conversion of the Series F Convertible Preferred Stock because no additional consideration will be received in connection with the exercise of the conversion privilege.

(6)

In addition to the shares of Common Stock set forth in this table, pursuant to Rule 416 under the Act, this registration statement also registers such indeterminate number of shares of Common Stock as may become issuable upon exercise of these securities as the same may be adjusted as a result of stock splits, stock dividends, recapitalizations or other similar transactions.

(7)

A filing fee of $778.80 is paid herewith. Calculated pursuant to Rule 457(o) under the Securities Act. The registrant previously registered an aggregate of $30,000,000 of securities on the Initial Registration Statement, for which a filing fee of $3,894.00 was previously paid.

 

 

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.

 

 

 


EXPLANATORY NOTE

This Registration Statement is being filed by Biolase, Inc. (the “Company”) pursuant to Rule 462(b) under the Securities Act of 1933, as amended. Pursuant to Rule 462(b), the Company hereby incorporates by reference into this Registration Statement on Form S-1 in its entirety the Registration Statement on Form S-1 (File No. 333-238914), which was declared effective by the Securities and Exchange Commission (“SEC”) on July 1, 2020 (the “Initial Registration Statement”), including each of the documents filed by the Company with the SEC and incorporated or deemed to be incorporated by reference therein and all exhibits thereto.

In accordance with Rule 462(b) promulgated under the Securities Act, an additional amount of securities having a proposed maximum aggregate offering price of not more than 20% of the maximum aggregate offering price of the securities registered under the Initial Registration Statement are being registered. This Registration Statement is being filed with respect to the registration of an additional $3,000,000 aggregate maximum amount of Units of the Company, each Unit consisting of one share of Series F Convertible Preferred Stock, par value $0.001 per share and 2,500 Warrants, each to purchase one share of Common Stock and an additional $3,000,000 of shares of Common Stock underlying the Warrants, all of which are described in the prospectus constituting a part of the Initial Registration Statement.

The required opinions of counsel and related consent and accountant’s consent are attached hereto and filed herewith.


PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 8.

Exhibits and Financial Statement Schedules

 

(a)

Exhibits

All exhibits filed or incorporated by reference in the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-238914), are incorporated by reference into, and shall be deemed to be part of, this Registration Statement, except for the following, which are filed herewith:

 

  5.1    Opinion of Loeb & Loeb LLP.
23.1    Consent of Consent of BDO USA, LLP
23.2    Consent of Loeb & Loeb LLP (included in Exhibit 5.1).


SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this amendment to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Irvine, State of California, on July 15, 2020.

 

BIOLASE, INC.
By:   /s/ Todd A. Norbe
 

Todd A. Norbe

President and Chief Executive Officer

By:   /s/ John R. Beaver
 

John R. Beaver

Executive Vice President and Chief Financial Officer


Pursuant to the requirements of the Securities Act of 1933, this amendment has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

         

Title

         

Date

/s/ Todd A. Norbe      President and Chief Executive Officer (Principal Executive Officer) and Director      July 15, 2020
Todd A. Norbe       
/s/ John R. Beaver     

Executive Vice President and

Chief Financial Officer

(Principal Financial Officer and

Principal Accounting Officer)

     July 15, 2020
John R. Beaver       
      
      
*      Director      July 15, 2020
Jonathan T. Lord          
*      Director      July 15, 2020
Dr. Mike DiTolla          
*      Director      July 15, 2020
Dr. Richard B. Lanman          
*      Director      July 15, 2020
Jess Roper          
*      Director      July 15, 2020
Garrett Sato          
*      Director      July 15, 2020
Dr. Elaine Wagner          
/s/ John R. Beaver          
By:   John R. Beaver          
  Attorney-in-Fact          
EX-5.1

Exhibit 5.1

 

LOGO   

 

345 Park Avenue

New York, NY 10154-1895

    

 

Direct

Main

Fax

 

 

212.407.4000

212.407.4000

212.407.4990

July 15, 2020

Biolase, Inc.

4 Cromwell

Irvine, CA 92618

Ladies and Gentlemen:

We have acted as counsel to Biolase, Inc., a Delaware corporation (the “Company”), in connection with the Company’s filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-1 (the “462(b) Registration Statement”), pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Securities Act”). The 462(b) Registration Statement incorporates by reference the Company’s Registration Statement on Form S-1 (File No. 333-238914) filed with the Commission on June 3, 2020 (as amended on June 19, 2020 and June 26, 2020, the “Initial Registration Statement” and together with the 462(b) Registration Statement, the “Registration Statement”). This opinion is furnished to you in connection with your filing of the 462(b) Registration Statement, which is registering the offering by the Company of up to (i) 3,000 non-transferable subscription rights (the “Rights”) to be distributed by the Company without consideration in connection with a rights offering (the “Rights Offering”) to holders of record of the Company’s Common Stock, par value $0.001 per share (the “Common Stock”) and to holders of record of certain Common Stock purchase warrants issued in June 2020, and (ii) 3,000 units (the “Units”) at a price of $1,000 per Unit, each Unit consisting of (A) one share of the Company’s Series F Convertible Preferred Stock, par value $0.001 per share (“Preferred Stock”), each convertible into 2,500 shares of Common Stock (the “Conversion Shares”) and (B) 2,500 warrants, (the “Warrants”), each exercisable to purchase one share of Common Stock (the shares of Common Stock issuable upon exercise of the Warrants, the “Warrant Shares”).

We have examined originals or copies, certified or otherwise identified to our satisfaction, of such corporate records of the Company and other certificates and documents of officials of the Company, public officials and others as we have deemed appropriate for purposes of this letter. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to authentic original documents of all copies submitted to us as conformed and certified or reproduced copies.

Based upon the foregoing and subject to the assumptions, exceptions, qualifications and limitations set forth hereinafter, we are of the opinion that:

1. The Rights, when issued and delivered as described in the Registration Statement, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.


Biolase, Inc.

Page 2

 

2. The Units, when issued, delivered and paid for as described in the Registration Statement, will be validly issued, fully paid and non-assessable.

3. The Warrants, when duly executed by the Company and duly delivered to the purchasers thereof against payment therefor as described in the Registration Statement, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.

4. The Warrant Shares have been duly authorized and if, as, and when the Warrant Shares are issued and delivered by the Company upon exercise of the Warrants in accordance with the terms thereof, including, without limitation, the payment in full of applicable consideration, the Warrant Shares will be validly issued, fully paid and non-assessable.

5. The shares of Preferred Stock, when issued, delivered and paid for as described in the Registration Statement, will be validly issued, fully paid and non-assessable.

6. The Conversion Shares have been duly authorized and, upon issuance and delivery as described in accordance with the Certificate of Designation of the Series F Convertible Preferred Stock filed in connection with the offering contemplated by the Registration Statement and the Company’s Restated Certificate of Incorporation, as amended, will be validly issued, fully paid and non-assessable.

The opinions we express above are based upon a review only of those laws, statutes, rules, ordinances and regulations which, in our experience, a securities lawyer who is a member of the bar of the State of New York and practicing before the Commission exercising customary professional diligence would reasonably recognize as being applicable to the foregoing transactions.

The opinions set forth in paragraphs 1 and 3 above are subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law relating to or affecting creditors’ rights generally (including, without limitation, fraudulent conveyance laws) and (ii) the effect of general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.

We express no opinion as to the enforceability of (i) provisions that relate to choice of law, forum selection or submission to jurisdiction (including, without limitation, any express or implied waiver of any objection to venue in any court or of any objection that a court is an inconvenient forum) to the extent that the validity, binding effector enforceability of any such provision is to be determined by any court other than a state court of the State of New York and (ii) waivers by the Company of any statutory or constitutional rights or remedies. We draw your attention to the fact that, under certain circumstances, the enforceability of terms to the effect that provisions may not be waived or modified except in writing may be limited.

The opinions we express herein are limited to matters involving the internal laws of the State of New York and the Delaware General Corporation law.


Biolase, Inc.

Page 3

 

We are furnishing this opinion in connection with the filing of the 462(b) Registration Statement and this opinion is not to be relied upon for any other purpose without our prior written consent. We hereby consent to the filing of this opinion as an exhibit to the 462(b) Registration Statement, and to the reference to our firm under the heading “Legal Matters” in the prospectus constituting part of the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

Very truly yours,

/s/ Loeb & Loeb LLP

Loeb & Loeb LLP

EX-23.1

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

Biolase, Inc.

Irvine, California

We hereby consent to the incorporation by reference in this Registration Statement of our report dated March 27, 2020, 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, 2019. Our report 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. 333-238914) incorporated by reference in this Registration Statement.

/s/ BDO USA, LLP

Costa Mesa, California

July 15, 2020