0001144204-14-015179.txt : 20140312 0001144204-14-015179.hdr.sgml : 20140312 20140312171043 ACCESSION NUMBER: 0001144204-14-015179 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20140312 DATE AS OF CHANGE: 20140312 GROUP MEMBERS: ORACLE ASSOCIATES, LLC GROUP MEMBERS: ORACLE INSTITUTIONAL PARTNERS, L.P. GROUP MEMBERS: ORACLE INVESTMENT MANAGEMENT, INC. GROUP MEMBERS: ORACLE PARTNERS, L.P. GROUP MEMBERS: ORACLE TEN FUND MASTER, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BIOLASE, INC CENTRAL INDEX KEY: 0000811240 STANDARD INDUSTRIAL CLASSIFICATION: DENTAL EQUIPMENT & SUPPLIES [3843] IRS NUMBER: 870442441 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-47361 FILM NUMBER: 14688454 BUSINESS ADDRESS: STREET 1: 4 CROMWELL CITY: IRVINE STATE: CA ZIP: 92618 BUSINESS PHONE: 949-361-1200 MAIL ADDRESS: STREET 1: 4 CROMWELL CITY: IRVINE STATE: CA ZIP: 92618 FORMER COMPANY: FORMER CONFORMED NAME: BIOLASE TECHNOLOGY INC DATE OF NAME CHANGE: 19941117 FORMER COMPANY: FORMER CONFORMED NAME: LASER MEDICAL TECHNOLOGY INC DATE OF NAME CHANGE: 19941117 FORMER COMPANY: FORMER CONFORMED NAME: LASER ENDO TECHNIC CORP DATE OF NAME CHANGE: 19920708 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FEINBERG LARRY N CENTRAL INDEX KEY: 0000926475 STATE OF INCORPORATION: NY FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: C/O ORACLE PARTNERS L P STREET 2: 200 GREENWICH AVENUE CITY: GREENWICH STATE: CT ZIP: 06830 SC 13D/A 1 v371464_sc13da.htm SCHEDULE 13D/A

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 13D/A

 

Amendment No. 4

 

Under the Securities Exchange Act of 1934

 

Biolase, Inc.

 

(Name of Issuer)

 

Common Shares, $0.001 par value

 

(Title of Class of Securities)

 

090911108

 

(CUSIP Number)

 

Copy to:

 

Robert L. Lawrence, Esq.

Kane Kessler, P.C.

1350 Avenue of the Americas, 26th Floor

New York, New York 10019

(212) 541-6222



(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

 

March 12, 2014

 

(Date of Event which requires Filing of this Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨

 

 
 

 

1

NAME OF REPORTING PERSON

 

Oracle Partners, L.P.

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a)

(b)

3

SEC USE ONLY

 

4

SOURCE OF FUNDS*

 

OO

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)

¨

 

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

Delaware

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7

SOLE VOTING POWER

 

0 (See Item 5)

8

SHARED VOTING POWER

 

4,195,237 (See Item 5)

9

SOLE DISPOSITIVE POWER

 

0 (See Item 5)

10

SHARED DISPOSITIVE POWER

 

4,195,237 (See Item 5)

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

4,195,237 (See Item 5)

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*

¨

 

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

11.3%

14

 

TYPE OF REPORTING PERSON*

 

PN

       

 

2
 

 

1

NAME OF REPORTING PERSON

 

Oracle Institutional Partners, L.P.

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a)

(b)

3

SEC USE ONLY

 

4

SOURCE OF FUNDS*

 

OO

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)

¨

 

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

DELAWARE

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7

SOLE VOTING POWER

 

0 (See Item 5)

8

SHARED VOTING POWER

 

599,194 (See Item 5)

9

SOLE DISPOSITIVE POWER

 

0 (See Item 5)

10

SHARED DISPOSITIVE POWER

 

599,194 (See Item 5)

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

599,194 (See Item 5)

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*

¨

 

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

1.6%

14

 

TYPE OF REPORTING PERSON*

 

PN

       

 

3
 

 

1

NAME OF REPORTING PERSON

 

Oracle Ten Fund Master, L.P.

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a)

(b)

3

SEC USE ONLY

 

4

SOURCE OF FUNDS*

 

OO

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)

¨

 

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

Cayman Islands

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7

SOLE VOTING POWER

 

0 (See Item 5)

8

SHARED VOTING POWER

 

1,310,952 (See Item 5)

9

SOLE DISPOSITIVE POWER

 

0 (See Item 5)

10

SHARED DISPOSITIVE POWER

 

1,310,952 (See Item 5)

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

1,310,952 (See Item 5)

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*

¨

 

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

3.5%

14

 

TYPE OF REPORTING PERSON*

 

OO

       
4
 

 

1

NAME OF REPORTING PERSON

 

Oracle Associates, LLC

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a)

(b)

3

SEC USE ONLY

 

4

SOURCE OF FUNDS*

 

OO

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)

¨

 

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

Delaware

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7

SOLE VOTING POWER

 

0 (See Item 5)

8

SHARED VOTING POWER

 

4,794,431 (See Item 5)

9

SOLE DISPOSITIVE POWER

 

0 (See Item 5)

10

SHARED DISPOSITIVE POWER

 

4,794,431 (See Item 5)

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

4,794,431 (See Item 5)

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*

¨

 

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

12.9%

14

 

TYPE OF REPORTING PERSON*

 

OO

       

 

5
 

 

1

NAME OF REPORTING PERSON

 

Oracle Investment Management, Inc.

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a)

(b)

3

SEC USE ONLY

 

4

SOURCE OF FUNDS*

 

OO

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)

¨

 

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

Delaware

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7

SOLE VOTING POWER

 

0 (See Item 5)

8

SHARED VOTING POWER

 

1,310,952 (See Item 5)

9

SOLE DISPOSITIVE POWER

 

0 (See Item 5)

10

SHARED DISPOSITIVE POWER

 

1,310,952 (See Item 5)

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

1,310,952 (See Item 5)

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*

¨

 

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

3.5%

14

 

TYPE OF REPORTING PERSON*

 

CO

       
6
 

 

1

NAME OF REPORTING PERSON

 

Larry N. Feinberg

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)

(a)

(b)

3

SEC USE ONLY

 

4

SOURCE OF FUNDS*

 

OO

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)

¨

 

6

CITIZENSHIP OR PLACE OF ORGANIZATION

 

United States

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7

SOLE VOTING POWER

 

0 (See Item 5)

8

SHARED VOTING POWER

 

6,105,383 (See Item 5)

9

SOLE DISPOSITIVE POWER

 

0 (See Item 5)

10

SHARED DISPOSITIVE POWER

 

6,105,383 (See Item 5)

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

6,105,383 (See Item 5)

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*

¨

 

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

16.4%

14

 

TYPE OF REPORTING PERSON*

 

IN

       

 

7
 

Item 1. Security and Issuer.

 

This Amendment No. 4 (the “Amendment”) amends the Schedule 13D originally filed with the Securities and Exchange Commission on November 22, 2013, as previously amended by Amendment No. 1, filed on December 20, 2013, Amendment No. 2, filed on February 13, 2014 and Amendment No. 3, filed on March 11, 2014 (the “Original Schedule 13D,” and collectively with the Amendment, the “Statement”) with respect to the shares of common par value $0.001 per share (“Common Stock” or the “Shares”) of Biolase, Inc. (the “Issuer”), whose principal executive offices are located at 4 Cromwell, Irvine, CA 92618.

 

Item 4. Purpose of Transaction

 

Item 4 of the Statement is hereby amended by the addition of the following:

 

On March 12, 2014, Oracle Partners, L.P. (“Oracle”) issued a press release announcing it has commenced legal action in the Delaware Court of Chancery against the Issuer seeking to enjoin action in violation of the Issuer’s Bylaws and Delaware law. Oracle’s action in Delaware seeks: a declaratory judgment that the resignations of each of Dr. Alexander K. Arrow and Dr. Sam Low were effective on February 28, 2014, when those resignations were communicated to the Issuer or its Board, and that neither Dr. Arrow nor Dr. Low is currently a member of the Board; a declaratory judgment that the Board currently consists of only six members, not eight; and an Order temporarily, preliminarily and permanently enjoining the Issuer and its Board from taking any actions unless they are approved by at least four of the Issuer’s directors, excluding any votes of Drs. Arrow or Low.

 

The press release is attached to this Amendment as Exhibit 99.1 and is incorporated herein by reference.

 

Item 7.  Material to be Filed as Exhibits.

 

99.1Press Release of Oracle Partners, dated March 12, 2014.

 

8
 

After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this Schedule 13D is true, complete and correct.

 

Dated: March 12, 2014

 

  ORACLE PARTNERS, L.P.
   
    By: ORACLE ASSOCIATES, LLC, its general partner
         
      By: /s/ Larry N. Feinberg
        Larry N. Feinberg, Managing Member
         
         
  ORACLE INSTITUTIONAL PARTNERS, L.P.
         
    By: ORACLE ASSOCIATES, LLC, its general partner
         
      By: /s/ Larry N. Feinberg
        Larry N. Feinberg, Managing Member
         
         
  ORACLE TEN FUND MASTER, L.P.
         
    By: ORACLE ASSOCIATES, LLC, its general partner
     
      By: /s/ Larry N. Feinberg
        Larry N. Feinberg, Managing Member
         
         
  ORACLE ASSOCIATES, LLC
         
    By: /s/ Larry N. Feinberg
      Larry N. Feinberg, Managing Member
         
         
  ORACLE INVESTMENT MANAGEMENT, INC.
   
    By: /s/ Larry N. Feinberg
      Larry N. Feinberg, Managing Member
         
         
    /s/ Larry N. Feinberg
    Larry N. Feinberg, Individually

 

 

9

EX-99.1 2 v371464_ex99-1.htm EXHIBIT 99.1

 

Oracle Partners Commences Legal Action Against Biolase, Inc.

 

Seeks to Enjoin Unlawful Action

 

GREENWICH, Conn., March 12, 2014 /PRNewswire/ -- Oracle Partners, L.P. ("Oracle"), Biolase, Inc.'s ("Biolase" or the "Company") (Nasdaq: BIOL) largest shareholder, announced that it has commenced legal action in the Delaware Court of Chancery against the Company seeking to enjoin action in violation of the Company’s Bylaws and Delaware law. The unlawful action occurred when the Company, without approval of the Board, purportedly expanded the Company’s Board of Directors from six to eight directors and reappointed two directors who had previously resigned from the Board. Specifically:

 

·On, February 28, 2014, two current Board members, Dr. Alexander K. Arrow and Dr. Sam Low tendered their resignations as directors of the Company and two independent new directors, Mr. Jeffrey M. Nugent and Mr. Paul N. Clark, were appointed by the Board to fill the resulting two vacancies.

 

·Biolase publicly announced these events in a press release on March 3, 2014 and stated that its Board consists of six directors.

 

·On March 6, 2014, the Company filed a Form 8-K with the Securities and Exchange Commission reporting the appointments of Messrs. Clark and Nugent to the Board, but claiming the size of the Board somehow to be increased to eight members because Mr. Pignatelli claims after-the-fact not to have accepted the resignations of Drs. Arrow and Low.

 

·Under both the Company’s own Bylaws and as a matter of Delaware law, director resignations become effective immediately and are effective whether or not accepted by the Company or the Board.

 

·Since the vacancies created by Drs. Arrow’s and Low’s resignations were subsequently filled by Messrs. Clark and Nugent, there were no Board vacancies remaining to which Drs. Arrow and Low could be reappointed.

 

·Any expansion of the Board from six to eight members and any reappointment of Drs. Arrow and Low require action by a majority of the Board, neither of which is purported to have occurred.

 

Larry Feinberg, the Managing Member of Oracle’s general partner stated: “What seems to have occurred is a manipulation of the Board at the behest of the Chairman and CEO in an effort to protect his positions at the Company. We therefore have taken action against the Company in Delaware Court to prevent this unlawful activity.”

 

Oracle’s action in Delaware seeks the following relief:

 

·A declaratory judgment that the resignations of each of Drs. Arrow and Low were effective on February 28, 2014, when those resignations were communicated to the Company or its Board, and that neither Dr. Arrow nor Dr. Low is currently a member of the Board.

 

·A declaratory judgment that the Board currently consists of only six members, not eight as falsely claimed by the Company in its March 6 Form 8-K.

 

·An Order temporarily, preliminarily and permanently enjoining Biolase and its Board from taking any actions unless they are approved by at least four of the Biolase directors, excluding any votes of Drs. Arrow or Low, whose directorships are vehemently disputed.

 

Oracle Partners previously announced its nomination of four independent directors for election to the Biolase Board in response to these unlawful actions in furtherance of management and Board entrenchment, as well as the poor operating and financial performance of the Company.

 

Mr. Feinberg added: “Unlawful actions regarding Board composition cannot stand. We have brought our action in Delaware court for the benefit of all shareholders and intend to vigorously pursue and enforce shareholders’ rights.”

 

About Oracle Partners, L.P.

 

Oracle Partners is a fundamental-research driven investment fund that is exclusively focused on the global healthcare and bioscience industries.

 

Additional Information and Where to Find It

 

Oracle Partners, L.P., Oracle Institutional Partners, L.P., Oracle Ten Fund Master, L.P., Oracle Associates, LLC, Oracle Investment Management, Inc. and Larry N. Feinberg (collectively, "Oracle"), together with Paul N. Clark, Jeffrey M. Nugent, Frederic H. Moll and Eric Varma, are participants in the solicitation of proxies from stockholders in connection with the 2014 Annual Meeting of Stockholders (the "Annual Meeting") of Biolase, Inc. (the "Company"). Oracle intends to file a proxy statement (the "2014 Proxy Statement") with the Securities and Exchange Commission (the "SEC") in connection with the solicitation of proxies for the Annual Meeting.

 

 
 

 

Oracle may be deemed to beneficially own 6,105,383 shares of the Company's common stock, representing approximately 16.4% of the Company's outstanding common stock. None of the other participants owns in excess of 1% of the Company's common stock. Additional information regarding such participants, including their direct or indirect interests, by security holdings or otherwise, will be included in the 2014 Proxy Statement and other relevant documents to be filed with the SEC in connection with the Annual Meeting.

 

Promptly after filing its definitive 2014 Proxy Statement with the SEC, Oracle intends to mail the definitive 2014 Proxy Statement and an accompanying proxy card to some or all stockholders pursuant to applicable SEC rules. STOCKHOLDERS ARE URGED TO READ THE 2014 PROXY STATEMENT (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) AND ANY OTHER RELEVANT DOCUMENTS THAT THE COMPANY WILL FILE WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Stockholders may obtain, free of charge, copies of the definitive 2014 Proxy Statement and any other documents filed by Oracle with respect to the Company with the SEC in connection with the Annual Meeting at the SEC's website (http://www.sec.gov) or by writing to Oracle Partners, L.P., 200 Greenwich Avenue, Greenwich, CT 06830.

 

CONTACT:Oracle Partners, L.P., Aileen Wiate, Chief Financial Officer, (203) 862-7900 or BMC Communications, Brad Miles, CEO, 646.513.3125