EX-10.1






SUBSCRIPTION AGREEMENT




Biolase, Inc. 4
Cromwell



Irvine, California 92618



Ladies and Gentlemen:



The undersigned understand that Biolase, Inc., a corporation organized under the laws of
Delaware (the “Company”), is offering an aggregate of 1,945,525 shares of its common stock, par
value $0.001 per share (“Common Stock” and such shares of Common Stock, the “Securities”), in a
private placement. The undersigned further understand that the offering is being made without
registration of the Securities under the Securities Act of 1933, as amended (the “Securities
Act”), or any securities law of any state of the United States or of any other jurisdiction.



1. Subscription. Subject to the terms and conditions hereof, the undersigned
hereby irrevocably subscribe for the Securities set forth on Schedule I for the aggregate purchase
price set forth below, which is payable as described in Section 4 hereof. The undersigned
acknowledge that the Securities will be subject to restrictions on transfer as set forth in this
subscription agreement (this “Subscription Agreement”).



2. Acceptance of Subscription and Issuance of Securities. It is understood and
agreed that the Company’s acceptance of this subscription shall be deemed effective when this
Subscription Agreement is signed by a duly authorized officer of the Company and delivered to the
undersigned. Notwithstanding anything in this Subscription Agreement to the contrary, the Company
shall have no obligation to issue any of the Securities to any person who is a resident of a
jurisdiction in which the issuance of Securities to such person would constitute a violation of
the securities, “blue sky” or other similar laws of such jurisdiction (collectively referred to as
the “State Securities Laws”).



3. The Closing. The closing of the purchase and sale of the Securities (the


“Closing”) shall take place at the headquarters of the Company, within one (1) business day of
the date hereof, or at such other time and place as the Company may designate by notice to the
undersigned.



4. Payment for Securities. Payment for the Securities shall be received by the
Company from the undersigned by wire transfer of immediately available funds or other means
approved by the Company at or prior to the Closing, at the price of $2.57 per share, for total
consideration of $4,999,999.25. The Company shall deliver certificates


representing the Securities to the undersigned at the Closing bearing the legend set forth
in Section 9.



5. Representations and Warranties of the Company. As of the date hereof and as of



the Closing, the Company hereby represents and warrants to and covenants with the
undersigned that:




(a) General.



(i) The Company is duly formed and validly existing under the laws of Delaware, with full
power and authority to conduct its business as it is currently being conducted and to own its
assets; and has secured any other authorizations, approvals, permits and orders required by law for
the conduct by the Company of its business as it is currently being conducted.



(ii) The Company has all corporate right, power and authority to enter into this Subscription
Agreement and to consummate the transactions contemplated hereby. All corporate action on the part
of the Company, its directors and stockholders necessary for the authorization, execution,
delivery and performance of this Subscription Agreement by the Company, the authorization, sale,
issuance and delivery of the Securities contemplated herein and the performance of the Company’s
obligations hereunder has been taken. This Subscription Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.



(iii) The Securities have been duly authorized and, when issued, delivered and paid for
in the manner set forth in this Subscription Agreement, will be validly issued, fully paid and
non-assessable and shall be free and clear of any encumbrances, preemptive rights or
restrictions (other than as provided in this Subscription Agreement or any restrictions on
transfer generally imposed under applicable securities laws).



(iv) The Company is not required to obtain any consent, waiver, authorization or order of,
give any notice to, or make any filing or registration with, any court or other federal, state,
local or other governmental authority or other person in connection with the execution, delivery
and performance by the Company of this Subscription Agreement, other than filings that have been
made, or will be made, pursuant to the rules and regulations of Nasdaq, applicable State
Securities Laws and post-sale filings pursuant to applicable federal and State Securities Laws
which the Company undertakes to file or obtain within the applicable time periods.



(v) Assuming the accuracy of the undersigned’s representations and warranties set forth in
Section 6, no registration under the Securities Act is required for the offer and sale of the
Securities by the Company to the undersigned as contemplated



hereby.




(b) Listing Requirements.



(i) The Company hereby agrees to use reasonable best efforts to



maintain the listing or quotation of the Common Stock on the Nasdaq Capital Market (or such
other trading market that the Company applies to have the Common Stock traded on), and, as
promptly as practicable following the Closing, to secure the listing of all of the Securities on
such trading market.



6. Representations and Warranties of the Undersigned. As of the date hereof and as



of the Closing, each of the undersigned, severally and not jointly, hereby represents and
warrants to and covenants with the Company that:




(a) General.



(i) The undersigned has all requisite authority to purchase the Securities, enter into
this Subscription Agreement and to perform all the obligations required to be performed by
the undersigned hereunder, and such purchase will not contravene any law, rule or regulation
binding on the undersigned or any investment guideline or restriction applicable to the
undersigned.



(ii) The undersigned is acquiring the Securities for its own account and is not acquiring the
Securities as a nominee or agent or otherwise for any other person.



(iii) The undersigned will comply with all applicable laws and



regulations the undersigned is required to comply with in connection with the purchase or sale of
Securities in effect in any jurisdiction in which the undersigned purchases or sells Securities and
obtain any consent, approval or permission the undersigned is required to obtain in connection with
such purchase or sale of Securities under the laws and regulations of any jurisdiction to which the
undersigned is subject or in which the undersigned makes such purchases or sales, and the Company
shall have no responsibility therefor.




(b) Information Concerning the Company.



(i) The undersigned understands and accepts that the purchase of the Securities involves
various risks. The undersigned represents that it is able to bear any loss associated with its
investment in the Securities.



(ii) The undersigned confirms that it is not relying on any communication (written or oral) of
the Company or any of its affiliates, as investment advice or as a recommendation to purchase the
Securities. It is understood that information and explanations related to the terms and conditions
of the Securities provided by the Company or any of its affiliates shall not be considered
investment advice or a recommendation to purchase the Securities, and that neither the Company nor
any of its affiliates is acting or has acted as an advisor to the undersigned in deciding to invest
in the Securities. The undersigned acknowledges that neither the Company nor any of its affiliates
has made any representation regarding the proper characterization of the Securities for purposes of
determining the undersigned’s authority to invest in the Securities.



(iii) The undersigned has had access to information concerning the Company and the
Securities as it deems necessary to enable it to make an informed investment decision
concerning the purchase of the Securities.



(iv) The undersigned understands that, unless the undersigned notifies



the Company in writing to the contrary at or before the Closing, each of the undersigned’s
representations and warranties contained in this Subscription Agreement will be deemed to have
been reaffirmed and confirmed as of the Closing, taking into account all information received by
the undersigned.



(v) The undersigned understands that no federal or state agency has



passed upon the merits or risks of an investment in the Securities or made any finding or
determination concerning the fairness or advisability of this investment.




(c) Non-reliance.



(i) The undersigned represents that it is not relying on (and will not at



any time rely on) any communication (written or oral) of the Company, as investment advice or
as a recommendation to purchase the Securities, it being understood that information and
explanations related to the terms and conditions of the Securities shall not be considered
investment advice or a recommendation to purchase the Securities.



(ii) Except as expressly provided herein, the undersigned confirms that



the Company has not (A) given any guarantee or representation as to the potential success,
return, effect or benefit (either legal, regulatory, tax, financial, accounting or otherwise) an of
investment in the Securities or (B) made any representation to the undersigned regarding the
legality of an investment in the Securities under applicable legal investment or similar laws or
regulations. In deciding to purchase the Securities, the undersigned is not relying on the advice
or recommendations of the Company and the undersigned has made its own independent decision that
the investment in the Securities is suitable and appropriate for the undersigned.




(d) Status of Undersigned.




(i) The undersigned has such knowledge, skill and experience in



business, financial and investment matters that the undersigned is capable of evaluating the merits
and risks of an investment in the Securities. With the assistance of the undersigned’s own
professional advisors, to the extent that the undersigned has deemed appropriate, the undersigned
has made its own legal, tax, accounting and financial evaluation of the merits and risks of an
investment in the Securities and the consequences of this Subscription Agreement. The undersigned
has considered the suitability of the Securities as an investment in light of its own circumstances
and financial condition and the undersigned is able to bear the risks associated with an investment
in the Securities and its authority to invest in the Securities.




(ii) The undersigned is an “accredited investor” as defined in as



defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), or (a)(8) under the Securities Act, and the
undersigned is not required to be registered as a broker-dealer under Section 15 of the Exchange
Act. The undersigned agrees to furnish any additional information reasonably requested by the
Company or any of its affiliates to assure compliance with applicable U.S. federal and State
Securities Laws in connection with the purchase and sale of the Securities.




(e) Restrictions on Transfer or Sale of Securities. As applies to the



undersigned:



(i) The undersigned is acquiring the Securities solely for the undersigned’s own beneficial
account, for investment purposes, and not with a view to, or for resale in connection with, any
distribution of the Securities. The undersigned understands that the Securities have not been
registered under the Securities Act or any State Securities Laws by reason of specific exemptions
under the provisions thereof which depend in part upon the investment intent of the undersigned and
of the other representations made by the undersigned in this Subscription Agreement. The
undersigned understands that the Company is relying upon the representations and agreements
contained in this Subscription Agreement for the purpose of determining whether this transaction
meets the requirements for such exemptions.



(ii) The undersigned understands that the Securities are “restricted securities” under
applicable federal securities laws and that the Securities Act and the rules of the U.S. Securities
and Exchange Commission (the “Commission”) provide in substance that the undersigned may dispose of
the Securities only pursuant to an effective registration statement under the Securities Act or an
exemption therefrom such as the exemption and safe harbor provided under Rule 144 of the Securities
Act.



(iii) The undersigned agrees that the undersigned will not sell, assign, pledge, give,
transfer or otherwise dispose of the Securities or any interest therein, or make any offer or
attempt to do any of the foregoing, except pursuant to a registration of the Securities under the
Securities Act or in a transaction which is exempt from the registration provisions of the
Securities Act such as the exemption and safe harbor provided under Rule 144 of the Securities Act;
that the certificates representing the Securities will bear a legend making reference to the
foregoing restrictions; and that the Company and its affiliates shall not be required to give
effect to any purported transfer of such Securities except upon compliance with the foregoing
restrictions.



7. Conditions to Obligations of the Undersigned and the Company. The obligations



of the undersigned to purchase and pay for the Securities and of the Company to sell the
Securities are subject to the satisfaction at or prior to the Closing of the following
conditions precedent: the representations and warranties of the Company contained in Section 5
hereof and of the undersigned contained in Section 6 hereof shall be true and


correct as of the Closing in all respects with the same effect as though such
representations and warranties had been made as of the Closing.



8. Obligations Irrevocable. The obligations of the undersigned to purchase
the Securities shall be irrevocable.



9. Legend. At the Closing, the certificates representing the Securities sold
pursuant to this Subscription Agreement will be imprinted with a legend in substantially the
following form:




THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH
EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED
BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR”
AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH
SECURITIES.



provided, that the Company shall (a) cause such legend to be promptly removed once a
registration statement covering the resale of the Securities is effective under the Securities Act
or such legend is no longer required under applicable law and (b) promptly thereafter deliver, or
cause to be delivered, to the undersigned new certificate(s) representing the Securities that are
free from all restrictive and other legends.



10. Waiver, Amendment. Neither this Subscription Agreement nor any provisions
hereof shall be modified, changed, discharged or terminated except by an instrument in writing,
signed by the party against whom any waiver, change, discharge or termination is sought.



11. Assignability. Neither this Subscription Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be assignable by either the
Company or the undersigned without the prior written consent of the other party.



12. Waiver of Jury Trial. EACH OF THE COMPANY AND THE UNDERSIGNED IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF THE
TRANSACTIONS CONTEMPLATED BY THIS SUBSCRIPTION AGREEMENT.



13. Submission to Jurisdiction. With respect to any suit, action or
proceeding relating to any offers, purchases or sales of the Securities by the undersigned
(“Proceedings”), each of the Company and the undersigned irrevocably submits to the jurisdiction
of the federal or state courts located in the State of Delaware, which submission shall be
exclusive unless none of such courts has lawful jurisdiction over such Proceedings.



14. Governing Law. This Subscription Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.



15. Section and Other Headings. The section and other headings contained in
this Subscription Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Subscription Agreement.



16. Counterparts. This Subscription Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be deemed to be an
original and all of which together shall be deemed to be one and the same agreement.



17. Notices. All notices and other communications provided for herein shall
be in writing and shall be deemed to have been duly given if delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid to the following
addresses (or such other address as either party shall have specified by notice in writing to
the other):



	 	 	 
	If to the Company:

If to the undersigned:
	 	Biolase, Inc.

4 Cromwell, Irvine, California, 92618

Facsimile: (949) 273-6685

E-mail: fpignatelli@biolase.net

	 	 	 

	 	 	Attention: Chairman & CEO

c/o Oracle Investment Management, Inc. 200 Greenwich Avenue,

3rd Floor Greenwich, Connecticut 06830

Facsimile: (203) 621-3400

	 	 	 

	 	 	E-mail: larry@oraclepartners.com

	 	 	 

	 	 	Attention: Mr. Larry N. Feinberg

with a copy (which shall not constitute notice) to:







Willkie Farr & Gallagher LLP 787
Seventh Avenue



	 	 	 
	New York, New York 10019

	Facsimile:

Email:

	 	212-728-9592

ihochman@willkie.com
	
 
	 	 
	Attention:

	 	Mr. Jeffrey Hochman






18. Binding Effect. The provisions of this Subscription Agreement shall be
binding



upon and accrue to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns.



19. Survival. All representations, warranties and covenants contained in this



Subscription Agreement shall survive the acceptance of the subscription by the Company and the
delivery of the Securities.



20. Notification of Changes. Each of the Company and the undersigned hereby



covenants and agrees to notify the other upon the occurrence of any event prior to the
closing of the purchase of the Securities pursuant to this Subscription Agreement which would
cause any representation, warranty, or covenant of such party contained in this Subscription
Agreement to be false or incorrect.



21. Severability. If any term or provision of this Subscription Agreement is
invalid,



illegal or unenforceable in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other term or provision of this Subscription Agreement or
invalidate or render unenforceable such term or provision in any other jurisdiction.



[SIGNATURE PAGE FOLLOWS]





IN WITNESS WHEREOF, the undersigned has executed this Subscription Agreement this 10th day
of February, 2014.



	 
	ORACLE PARTNERS L.P.

	 

By: /s/ Larry N. Feinberg

Name: Larry N. Feinberg

Title: Managing Partner/GP

	ORACLE INSTITUTIONAL PARTNERS L.P.

	 

By: /s/ Larry N. Feinberg

Name: Larry N. Feinberg

Title: Managing Partner/GP

	ORACLE TEN FUND MASTER L.P.

	 

By: /s/ Larry N. Feinberg

Name: Larry N. Feinberg

Title: Managing Partner/GP








	 	 	The offer to purchase Securities as set forth above is confirmed and accepted by the Company
as to 1,945,525 shares of Common Stock.






BIOLASE, INC.




By:       /s/ Federico Pignatelli—

Name: Federico Pignatelli

Title: Chairman and CEO




SCHEDULE I




ALLOCATION OF SECURITIES




	 	 	 	 	 	 	 	 	 
	 	 	Number of Securities	 	Purchase Price
	Oracle Ten Fund Master L.P.
	 	 	320,000	 	 	$	822,400.00	 
	 
	 	 	 	 	 	 	 	 
	Oracle Institutional Partners L.P.
	 	 	280,000	 	 	$	719,600.00	 
	 
	 	 	 	 	 	 	 	 
	Oracle Partners L.P.
	 	 	1,345,525	 	 	$	3,457,999.25	 
	 
	 	 	 	 	 	 	 	 
	TOTAL
	 	 	1,945,525	 	 	$	4,999,999.25