8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

February 13, 2006

Date of Report (Date of earliest event reported)

BIOLASE TECHNOLOGY, INC.

(Exact name of registrant as specified in its charter)

Delaware	000-19627	87-0442441
(State of Incorporation)	(Commission File Number)	(IRS Employer Identification Number)

981 Calle Amanecer

San Clemente, California 92673

(Address of principal executive offices) (Zip Code)

(949) 361-1200

(Registrant’s telephone number, including area code)

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01. Entry into a Material Definitive Agreement

On February 10, 2006, Biolase Technology, Inc. (the “Company”) and of each of Robert E. Grant, its Chief Executive Officer; Richard L. Harrison, its Chief Financial Officer; Jeffrey W. Jones, its Chief Technical Officer; Keith G. Bateman, its Executive Vice President, Marketing; and James M. Haefner, its Executive Vice President, Sales (each an “Officer”) entered into an amendment to such Officer’s employment agreement or offer letter (each, an “Amendment”). The primary purpose of each Amendment is to provide for certain severance payments to be made to the Officer upon the occurrence of a triggering event. A triggering event is defined as the occurrence of both:

• a change of control (as defined in the Amendment); and

• any termination of the Officer’s employment (i) by the Officer for good reason (as defined in his employment agreement, as amended) or (ii) by the Company without cause (as defined in the Officer’s employment agreement), in each case during the 18 months following the change of control.

Upon the occurrence of a triggering event, each Amendment provides that the Officer will be entitled to receive, subject to his execution of a general release in favor of the Company, the following:

• 100% of the Officer’s then current annual salary plus the full amount of the Officer’s potential bonus for the current year, which aggregate amount shall be paid in a one-time lump sum payment; and

• continuation of the benefits and perquisites set forth in the Officer’s employment agreement for a period of one year from the date of such termination or, in some cases, a lump sum payment equal to the value of the benefit or perquisite over a one-year period.

In addition, upon the occurrence of a triggering event all unvested options and shares of restricted stock held by the Officer shall immediately vest and become fully exercisable.

The preceding description is not complete and is qualified by reference to the Amendments, copies of which are included as exhibits to this Current Report on Form 8-K.

Item 9.01 Financial Statements and Exhibits

(d) Exhibits

10.1	Amendment No. 1 to Employment Agreement of Robert E. Grant dated February 10, 2006
10.2	Amendment No. 1 to Employment Agreement of Richard L. Harrison dated February 10, 2006
10.3	Amendment No. 1 to Employment Agreement of Jeffrey W. Jones dated February 10, 2006
10.4	Memo to Keith G. Bateman from Biolase Technology, Inc. regarding Severance Benefits Payable On Change of Control, dated February 10, 2006
10.5	Memo to James M. Haefner from Biolase Technology, Inc. regarding Severance Benefits Payable On Change of Control, dated February 10, 2006

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	BIOLASE TECHNOLOGY, INC.
Date: February 13, 2006	By:	/s/ Richard L. Harrison
		Richard L. Harrison
		Executive Vice President,
		Chief Financial Officer & Secretary

3

EX-10.1

EXHIBIT 10.1

AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT

(ROBERT E. GRANT)

This AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT (this “Amendment”) is entered into as of this 10th day of February 2006, by and between Robert E. Grant, an individual (“Executive”) and BIOLASE Technology, Inc., a Delaware corporation (the “Company”), with reference to the following facts:¹

A. The Company and Executive have entered into that certain agreement dated October 26, 2004 (the “Agreement”), which provides for the terms and conditions of the employment of Executive by the Company.

B. The Company and Executive now desire to amend the Agreement to provide certain modified terms and conditions.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties hereby agree to amend the Agreement as follows:

1. Section 7(g) of the Agreement shall be modified to now read:

Upon (i) a Change of Control, as defined in this Section 7(g), and (ii) any termination of Executive’s employment (x) by Executive for Good Reason or (y) by the Company other than for Cause, during the eighteen (18) months following a Change of Control (the “Termination Date”) and in lieu of any obligation to pay or provide Executive with the Severance Payments and other severance benefits within the time or manner specified in Sections 7(d) and 7(f) of the Agreement, and provided that Executive does not exercise any right he may have to revoke the Modified Release (defined below) within the statutory time frame for doing so (the effective date of such Modified Release being referred to herein as the “Date of Vesting”), each of Executive’s unvested stock options, including the Option described in Section 3(a) of the Agreement (the “Initial Stock Option”), as well as all shares of restricted stock, shall immediately become fully vested and exercisable as of the Date of Vesting. Additionally, Executive shall be entitled to receive 100% of Executive’s then current annual salary plus the full amount of Executive’s potential bonus for the current year, which amounts shall become fully vested upon the Date of Vesting, and which shall be paid in one-time lump sum no later than two and one half (2 1/2) months following the Termination Date. Further, Executive shall be entitled to receive from the Company paid COBRA premiums and reimbursement for any out-of-pocket costs, fees, charges or expenses associated with Executive’s (and his dependents’) receipt of medical and dental treatment. It is the intent of Executive and the Company that

¹ Terms with initial letters capitalized and not otherwise defined herein have their respective meanings as set forth in the Agreement.

Executive be reimbursed for said out-of-pocket costs, charges or expenses, up to a cap of three thousand dollars ($3,000) for a full twelve (12) month period immediately following the Termination Date. Thus, and to the extent that Executive had reached the annual three thousand dollar ($3,000) cap (as described in Section 4 of the Agreement) prior to the Termination Date, then Executive shall be entitled to receive additional reimbursements (up to a second three thousand dollar ($3,000) annual cap) for such out-of-pocket medical/dental costs, fees, charges or expenses incurred during the twelve (12) month period immediately following the Termination Date. Executive shall be entitled to exercise the stock options, including the Initial Stock Option, pursuant to this Section 7(g) as he would pursuant to Section 7(d) of the Agreement. Further, the Company shall pay to Executive, in a single lump sum no later than two and one half (2 1/2) months following the Termination Date, an amount equal to twelve (12) times the then-current monthly lease payment for Executive’s vehicle, plus an amount equal to the maintenance and insurance costs incurred by Executive for his vehicle during the preceding twelve (12) months. To the extent that it is permissible by law and in compliance with all plan rules, the Company shall continue to provide Executive with coverage under the Company’s group life insurance plan, accidental death and dismemberment plan and disability program during the twelve (12) month period following the Termination Date.

The additional severance benefits described in this Section 7(g) (as memorialized in this Amendment) are contingent upon Executive properly executing, and not revoking or attempting to revoke, a release of claims against the Company, its Board, its affiliates, and their employees and agents, which has been modified (from the previous version of Exhibit A to the Agreement) substantially in the form of Exhibit A hereto or, in the event of a change in law that would limit the effect or scope of the release attached as Exhibit A, a general release in a form that would have the same scope and effect as the release attached as Exhibit A would have had prior to the change in law (such release, the “Modified Release”). The Modified Release shall also apply with respect to the Severance Payments described in Section 7(d) of the Agreement.

For purposes of the foregoing, and superseding and replacing the definition of “Change of Control of the Company” as set forth in Section 7(g) of the Agreement, a “Change of Control” shall mean the occurrence of any of the following events: (i) an acquisition of any voting securities of the Company by any “person” (as the term “person” is used for purposes of Section 13(d) or Section 14(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”)) immediately after which such person has “beneficial ownership” (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of 50% or more of the combined voting power of the Company’s then outstanding voting securities; or (ii) approval by the stockholders of the Company of: (x) a merger, consolidation, share exchange or reorganization involving the Company, unless the stockholders of the Company, immediately before such merger, consolidation, share exchange or reorganization, own, directly or indirectly immediately following such merger, consolidation, share exchange or reorganization, at least

50% of the combined voting power of the outstanding voting securities of the corporation that is the successor in such merger, consolidation, share exchange or reorganization in substantially the same proportion as their ownership of the voting securities immediately before such merger, consolidation, share exchange or reorganization; (y) a complete liquidation or dissolution of the Company; or (z) an agreement for the sale or other disposition of all or substantially all of the assets of the Company.

2. The Agreement shall be further amended to add the following provisions as Section 7(k):

(k) Parachute Payment. If any payment or benefit the Executive would receive pursuant a Change of Control or otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): (1) reduction of cash payments, (2) cancellation of accelerated vesting of equity awards, and (3) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s equity awards unless the Executive elects in writing a different order for cancellation.

The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. Alternatively, the Company may wish to retain its primary outside legal counsel to conduct said calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting or law firm required to be made hereunder.

The accounting or law firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting or law firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting or law firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

3. The Agreement shall be further amended to add the following provision as Section 7(l):

(l) Notwithstanding the foregoing, if the Executive is deemed to be a “specified employee” within the meaning of such term in Section 409A of the Internal Revenue Code (“Code”) at the time of the Executive’s termination/resignation of employment with the Company, and the severance payment(s) described in Section 7(d) and/or 7(g) is deemed to be deferred compensation payable in connection with the separation from service of the Executive with the Company that is subject to the requirements of Section 409A of the Code, then such severance payment(s) shall be paid on the sixth (6) month anniversary following the date of Executive’s separation from the service with the Company to the extent required to comply with the distribution requirements of Section 409A of the Code.

4. Entire Agreement; Inconsistency. This Amendment, together with the Agreement, constitutes the entire agreement and understanding between the Company and the Executive with respect to the subject matter hereof and supersedes all prior and contemporaneous written or verbal agreements and understandings between the Executive and the Company relating to such subject matter. This Amendment may only be amended by written instrument signed by Executive and an officer of the Company specifically authorized by the Board for such purpose. Any and all prior agreements, understandings or representations relating to severance benefits are terminated and cancelled in their entirety and are of no further force or effect.

5. Counterparts. This Amendment may be executed in one or more counterparts, all of which together shall constitute one document.

IN WITNESS WHEREOF, this Amendment is made as of the date first written above.

		BIOLASE Technology, Inc.
Name:	/s/ ROBERT E. GRANT	By:	/S/ RICHARD L. HARRISON
	Robert E. Grant, an individual	Its:	Executive Vice President, Chief Financial Officer and Secretary

EXHIBIT A TO

ROBERT E. GRANT AMENDED EMPLOYMENT AGREEMENT

DATED FEBRUARY     , 2006

MUTUAL RELEASE AND WAIVER OF CLAIMS

In consideration of the payments and other benefits set forth in the Employment Agreement dated October 26, 2004 (the “Agreement”), as amended by Amendment No. 1 to Employment Agreement dated February     , 2006 (the “Amendment,” and together with the Agreement, the “Amended Agreement”), to which this form shall be deemed to be attached, Biolase Technology, Inc. (the “Company” ) and Robert E. Grant (“Executive”) hereby agree to the following mutual release and waiver of claims (“Release and Waiver” ).

In exchange for the consideration provided to Executive by the Amended Agreement that Executive is not otherwise entitled to receive, Executive hereby generally and completely releases the Company and its directors, officers, employees, shareholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates, and assigns from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring prior to my signing this Release and Waiver. This general release includes, but is not limited to: (1) all claims arising out of or in any way related to Executive’s employment with the Company or the termination of that employment; (2) all claims related to Executive’s compensation or benefits from the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, or any other ownership interests in the Company; (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (5) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under Title VII of the 1964 Civil Rights Act, as amended, the Age Discrimination in Employment Act, the California Fair Employment and Housing Act, the Equal Pay Act of 1963, as amended, the provisions of the California Labor Code, the Americans with Disabilities Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), the Sarbanes-Oxley Act of 2002, and any other state, federal, or local laws and regulations relating to employment and/or employment discrimination. The only exceptions are claims Executive may have for unemployment compensation and worker’s compensation, base salary (through the date of termination), prorated incentive pay to the extent that the bonus criteria has been satisfactorily achieved as specified in Section 2(b) of the Agreement, outstanding business expenses, and unused vacation earned through the date of termination of Executive.

In consideration of Executive’s release of claims as set forth above, the Company, on behalf of itself and each of its respective officers, directors, shareholders, employees, attorneys,

partners, associates, agents, representatives, predecessors, successors, assigns, and anyone who could claim by or through them, past, present and future, hereby unconditionally and irrevocably releases and forever discharge Executive, his representatives, predecessors, successors, assigns, spouses, heirs, executors and trustees, past, present and future, from any and all claims, demands, causes of action, damages and expenses, whether known or unknown, suspected or unsuspected, with respect to (1) all claims arising out of or in any way related to Executive’s employment with the Company or the termination of that employment; and (2) all claims related to Executive’s compensation or benefits from the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, or any other ownership interests in the Company. By this release of claims, the Company is not releasing Executive from his continuing obligations under the Proprietary Information and Inventions Agreement dated             , 20    (the “Proprietary Information Agreement”) and the non-solicitation provisions set forth in Section 6 (e) of the Agreement.

Both Executive and the Company expressly waive and relinquish any and all rights and benefits they now have or may have in the future under the terms of Section 1542 of the Civil Code of the State of California (“Section 1542”), which sections reads in full as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

Notwithstanding Section 1542, and subject to the continuing obligations under the Proprietary Information Agreement and the non-solicitation provisions set forth in Section 6(e) of the Agreement, the Company and Executive knowingly and voluntarily waive the provisions of Section 1542 as well as any other statutory or common law provisions of similar effect and acknowledge and agrees that this waiver is an essential part of this Release and Waiver.

Executive acknowledges that, among other rights, Executive is waiving and releasing any rights Executive may have under ADEA, that this Release and Waiver is knowing and voluntary, and that the consideration given for this Release and Waiver is in addition to anything of value to which Executive was already entitled as an executive of the Company. Executive further acknowledge that Executive has been advised, as required by the Older Workers Benefit Protection Act, that: (a) the release and waiver granted herein does not relate to claims under the ADEA which may arise after this Release and Waiver is executed; (b) Executive is hereby advised to consult with an attorney prior to executing this Release and Waiver (although Executive may choose voluntarily not to do so); and (c) Executive has twenty-one (21) days from the date of termination of Executive’s employment with the Company in which to consider this Release and Waiver (although Executive may choose voluntarily to execute this Release and Waiver earlier); (d) Executive has seven (7) days following the execution of this Release and Waiver to revoke his consent to this Release and Waiver; and (e) this Release and Waiver shall not be effective until the seven (7) day revocation period has expired.

Executive acknowledges his continuing obligations under the Proprietary Information Agreement and the non-solicitation provisions set forth in Section 6 (e) of the Agreement. Nothing contained in this Release and Waiver shall be deemed to modify, amend or supersede the obligations set forth in that agreement.

By signing this Release and Waiver, Executive hereby represents that he is not aware of any affirmative conduct or the failure to act on the part of the Company, its officers, directors, and/or employees concerning the Company’s business practices, its reporting obligations, its customers and/or prospective customers, its products, and/or any other any other aspect of the Company’s business, which Executive has any reason to believe rises to the level of unfair, improper and/or unlawful conduct pursuant to any state or federal law, rule, regulation or order, including, but not limited to, any rule, regulation or decision promulgated or enforced by the Securities and Exchange Commission, or which has been promulgated or enforced by any other state or federal office or administrative body pursuant to the Sarbanes-Oxley Act of 2002.

With the exception of the terms set forth in the Proprietary Information Agreement and the non-solicitation provisions set forth in Section 6 (e) of the Agreement, this Release and Waiver constitutes the complete, final and exclusive embodiment of the entire agreement between the Company and Executive with regard to the subject matter hereof. Executive is not relying on any promise or representation by the Company that is not expressly stated herein and the Company is not relying on any promise or representation by Executive that is not expressly stated herein. This Release and Waiver may only be modified by a writing signed by both Executive and a duly authorized officer of the Company.

The Company and Executive agree that for a period of ten (10) years after Executive’s employment with the Company ceases, they will not, in any communication with any person or entity, including any actual or potential customer, client, investor, vendor, or business partner of the Company, or any third party media outlet, make any derogatory or disparaging or critical negative statements – orally, written or otherwise – against the other, or against the Executive’s affiliates, any of the Company’s directors, officers, agents, employees, or contractors. The parties acknowledge and agree that the obligation on the part of the Company not to make any derogatory statements as set forth in this paragraph shall only apply to the Company’s officers and directors.

The parties agree that this Release and Waiver does not in any way compromise or lessen Executive’s rights to be indemnified by the Company or otherwise be covered under any applicable insurance policies that Executive would otherwise be entitled to receive and/or be covered by.

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

The parties agree that in no way does this mutual release of claims preclude Executive from enforcing his ownership rights pertaining to any stock or stock options which may have been purchased by Executive or granted to Executive by the Company pursuant to a written stock option grant and/or as memorialized in a written Board Resolution (and as reported periodically in the Company’s proxy statements).

BIOLASE TECHNOLOGY, INC.
By:
Title:
Dated:	___________________
Dated:	___________________
Robert E. Grant

EX-10.2

EXHIBIT 10.2

AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT

(RICHARD L. HARRISON)

This AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT (this “Amendment”) is entered into as of this 10th day of February 2006, by and between Richard L. Harrison, an individual (“Executive”) and BIOLASE Technology, Inc., a Delaware corporation (the “Company”), with reference to the following facts:¹

A. The Company and Executive have entered into that certain agreement dated December 12, 2005 (the “Agreement”), which provides for the terms and conditions of the employment of Executive by the Company.

B. The Company and Executive now desire to amend the Agreement to provide certain modified terms and conditions.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties hereby agree to amend the Agreement as follows:

1. Paragraph 5. B. of the Agreement shall be modified to reflect that the definition of “Change of Control” has now changed. With this Amendment, it shall be defined as set forth below, in the new Paragraph 12. C.

2. Paragraph 11 of the Agreement shall be modified to reflect that the Release shall be in the form attached as Exhibit A to this Amendment or, in the event of a change in the law that would limit the effect or scope of the release attached as Exhibit A, a general release in a form that would have the same effect as the release attached as Exhibit A would have had prior to the change in law.

3. Paragraph 12 of the Agreement shall be modified to add a subpart C., which shall now read:

C. Additional Severance Benefits On Change of Control. Upon (i) a Change of Control, as defined in this Section 12. C., and (ii) any termination of Executive’s employment (x) by Executive for Good Reason or (y) by the Company other than for Cause, during the eighteen (18) months following a Change of Control (the “Termination Date”) and in lieu of any obligation to pay or provide Executive with the severance payments and other severance benefits within the time or manner specified in Section 12.B. of the Agreement, and provided that Executive does not exercise any right he may have to revoke the Release within the statutory time frame for doing so (the effective date of such Release being referred to herein as the “Date of Vesting”), all shares of restricted

¹ Terms with initial letters capitalized and not otherwise defined herein have their respective meanings as set forth in the Agreement.

stock shall immediately become fully vested and exercisable as of the Date of Vesting. Additionally, Executive shall be entitled to receive 100% of Executive’s then current annual salary plus the full amount of Executive’s potential bonus for the current year, which amounts shall become fully vested upon the Date of Vesting, and which shall be paid in one-time lump sum no later than two and one half (2 1/2) months following the Termination Date. Further, Executive shall be entitled to receive from the Company paid COBRA premiums and reimbursement for any out-of-pocket costs, fees, charges or expenses associated with Executive’s (and his dependents’) receipt of medical and dental treatment for the twelve (12) month period following the Termination Date. It is the intent of Executive and the Company that Executive be reimbursed for said out-of-pocket costs, charges or expenses, up to a cap of three thousand dollars ($3,000) for a full twelve (12) month period immediately following the Termination Date. Executive had not previously been granted such a benefit. Further, the Company shall pay to Executive, in a single lump sum no later than two and one half (2  ¹/2) months following the Termination date, an amount equal to twelve (12) times Executive’s then-current monthly car allowance. To the extent that it is permissible by law and in compliance with all plan rules, the Company shall continue to provide Executive with coverage under the Company’s group life insurance plan, accidental death and dismemberment plan and disability program during the twelve (12) month period following the Termination Date.

For purposes of the foregoing, and superseding and replacing the definition of “Change of Control” as set forth in Paragraph 5. B. of the Agreement, a “Change of Control” shall mean the occurrence of any of the following events: (i) an acquisition of any voting securities of the Company by any “person” (as the term “person” is used for purposes of Section 13(d) or Section 14(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”)) immediately after which such person has “beneficial ownership” (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of 50% or more of the combined voting power of the Company’s then outstanding voting securities; or (ii) approval by the stockholders of the Company of: (x) a merger, consolidation, share exchange or reorganization involving the Company, unless the stockholders of the Company, immediately before such merger, consolidation, share exchange or reorganization, own, directly or indirectly immediately following such merger, consolidation, share exchange or reorganization, at least 50% of the combined voting power of the outstanding voting securities of the corporation that is the successor in such merger, consolidation, share exchange or reorganization in substantially the same proportion as their ownership of the voting securities immediately before such merger, consolidation, share exchange or reorganization; (y) a complete liquidation or dissolution of the Company; or (z) an agreement for the sale or other disposition of all or substantially all of the assets of the Company.

4. Paragraph 12.D. shall be added to the Agreement and shall state:

Parachute Payment. If any payment or benefit the Executive would receive pursuant a Change of Control or otherwise (“Payment”) would (i) constitute a

“parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): (1) reduction of cash payments, (2) cancellation of accelerated vesting of equity awards, and (3) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s equity awards unless the Executive elects in writing a different order for cancellation.

The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. Alternatively, the Company may wish to retain its primary outside legal counsel to conduct said calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting or law firm required to be made hereunder.

The accounting or law firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting or law firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting or law firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

5. Paragraph 12.E. shall be added to the Agreement and shall state:

Notwithstanding the foregoing, if the Executive is deemed to be a “specified employee” within the meaning of such term in Section 409A of the Internal Revenue Code (“Code”) at the time of the Executive’s termination/resignation of employment with the Company, and the severance payment(s) described in Section 12.B. and/or 12.C. is deemed to be deferred compensation payable in connection with the separation from service of the Executive with the Company that is subject to the requirements of Section 409A of the Code, then such severance payment(s) shall be paid on the sixth (6) month anniversary following the date of Executive’s separation from the service with the Company to the extent required to comply with the distribution requirements of Section 409A of the Code.

6. Entire Agreement; Inconsistency. This Amendment, together with the Agreement, constitutes the entire agreement and understanding between the Company and the Executive with respect to the subject matter hereof and supersedes all prior and contemporaneous written or verbal agreements and understandings between the Executive and the Company relating to such subject matter. This Amendment may only be amended by written instrument signed by Executive and an officer of the Company specifically authorized by the Board of Directors for such purpose. Any and all prior agreements, understandings or representations relating to severance benefits are terminated and cancelled in their entirety and are of no further force or effect.

7. Counterparts. This Amendment may be executed in one or more counterparts, all of which together shall constitute one document.

IN WITNESS WHEREOF, this Amendment is made as of the date first written above.

		BIOLASE Technology, Inc.
Name:	/s/ RICHARD L. HARRISON	By:	/s/ ROBERT E. GRANT
	Richard L. Harrison, an individual	Its:	Chief Executive Officer

EXHIBIT A TO

RICHARD L. HARRISON AMENDED EMPLOYMENT AGREEMENT

DATED FEBRUARY       , 2006

MUTUAL RELEASE AND WAIVER OF CLAIMS

In consideration of the payments and other benefits set forth in the Employment Agreement dated December 12, 2005 (the “Agreement”), as amended by Amendment No. 1 to Employment Agreement dated February __, 2006 (the “Amendment,” and together with the Agreement, the “Amended Agreement”), to which this form shall be deemed to be attached, Biolase Technology, Inc. (the “Company” ) and Richard L. Harrison (“Executive”) hereby agree to the following mutual release and waiver of claims (“Release and Waiver” ).

In exchange for the consideration provided to Executive by the Amended Agreement that Executive is not otherwise entitled to receive, Executive hereby generally and completely releases the Company and its directors, officers, employees, shareholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates, and assigns from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring prior to my signing this Release and Waiver. This general release includes, but is not limited to: (1) all claims arising out of or in any way related to Executive’s employment with the Company or the termination of that employment; (2) all claims related to Executive’s compensation or benefits from the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, or any other ownership interests in the Company; (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (5) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under Title VII of the 1964 Civil Rights Act, as amended, the Age Discrimination in Employment Act, the California Fair Employment and Housing Act, the Equal Pay Act of 1963, as amended, the provisions of the California Labor Code, the Americans with Disabilities Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), the Sarbanes-Oxley Act of 2002, and any other state, federal, or local laws and regulations relating to employment and/or employment discrimination. The only exceptions are claims Executive may have for unemployment compensation and worker’s compensation, base salary (through the date of termination), prorated incentive pay to the extent that the bonus criteria has been satisfactorily achieved as specified in Paragraph 4 of the Agreement, outstanding business expenses, and unused vacation earned through the date of termination of Executive.

In consideration of Executive’s release of claims as set forth above, the Company, on behalf of itself and each of its respective officers, directors, shareholders, employees, attorneys, partners, associates, agents, representatives, predecessors, successors, assigns, and anyone who could claim by or through them, past, present and future, hereby unconditionally and irrevocably releases and forever discharge Executive, his representatives, predecessors, successors, assigns, spouses, heirs, executors and trustees, past, present and future, from any and all claims, demands, causes of action, damages and expenses, whether known or unknown, suspected or unsuspected, with respect to (1) all claims arising out of or in any way related to Executive’s employment with the Company or the termination of that employment; and (2) all claims related to Executive’s compensation or benefits from the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, or any other ownership interests in the Company. By this release of claims, the Company is not releasing Executive from his continuing obligations under the Proprietary Information and Inventions Agreement dated             , 20       (the “Proprietary Information Agreement”) and the non-solicitation provisions set forth in Paragraphs 8.C. and 9., respectively, of the Agreement.

Both Executive and the Company expressly waive and relinquish any and all rights and benefits they now have or may have in the future under the terms of Section 1542 of the Civil Code of the State of California (“Section 1542”), which sections reads in full as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

Notwithstanding Section 1542, and subject to the continuing obligations under the Proprietary Information Agreement and the non-solicitation provisions addressed in Paragraphs 8.C. and 9, respectively, of the Agreement, the Company and Executive knowingly and voluntarily waive the provisions of Section 1542 as well as any other statutory or common law provisions of similar effect and acknowledge and agrees that this waiver is an essential part of this Release and Waiver.

Executive acknowledges that, among other rights, Executive is waiving and releasing any rights Executive may have under ADEA, that this Release and Waiver is knowing and voluntary, and that the consideration given for this Release and Waiver is in addition to anything of value to which Executive was already entitled as an executive of the Company. Executive further acknowledge that Executive has been advised, as required by the Older Workers Benefit Protection Act, that: (a) the release and waiver granted herein does not relate to claims under the ADEA which may arise after this Release and Waiver is executed; (b) Executive is hereby advised to consult with an attorney prior to executing this Release and Waiver (although Executive may choose voluntarily not to do so); and (c) Executive has twenty-one (21) days from the date of termination of Executive’s employment with the Company in which to consider this

Release and Waiver (although Executive may choose voluntarily to execute this Release and Waiver earlier); (d) Executive has seven (7) days following the execution of this Release and Waiver to revoke his consent to this Release and Waiver; and (e) this Release and Waiver shall not be effective until the seven (7) day revocation period has expired.

Executive acknowledges his continuing obligations under the Proprietary Information Agreement and the non-solicitation provisions set forth in Paragraphs 8.C. and 9., respectively, of the Agreement. Nothing contained in this Release and Waiver shall be deemed to modify, amend or supersede the obligations set forth in that agreement.

By signing this Release and Waiver, Executive hereby represents that he is not aware of any affirmative conduct or the failure to act on the part of the Company, its officers, directors, and/or employees concerning the Company’s business practices, its reporting obligations, its customers and/or prospective customers, its products, and/or any other any other aspect of the Company’s business, which Executive has any reason to believe rises to the level of unfair, improper and/or unlawful conduct pursuant to any state or federal law, rule, regulation or order, including, but not limited to, any rule, regulation or decision promulgated or enforced by the Securities and Exchange Commission, or which has been promulgated or enforced by any other state or federal office or administrative body pursuant to the Sarbanes-Oxley Act of 2002.

With the exception of the terms set forth in the Proprietary Information Agreement and the non-solicitation provisions set forth in Paragraphs 8.C. and 9., respectively, of the Agreement, this Release and Waiver constitutes the complete, final and exclusive embodiment of the entire agreement between the Company and Executive with regard to the subject matter hereof. Executive is not relying on any promise or representation by the Company that is not expressly stated herein and the Company is not relying on any promise or representation by Executive that is not expressly stated herein. This Release and Waiver may only be modified by a writing signed by both Executive and a duly authorized officer of the Company.

The Company and Executive agree that for a period of ten (10) years after Executive’s employment with the Company ceases, they will not, in any communication with any person or entity, including any actual or potential customer, client, investor, vendor, or business partner of the Company, or any third party media outlet, make any derogatory or disparaging or critical negative statements – orally, written or otherwise – against the other, or against the Executive’s affiliates, any of the Company’s directors, officers, agents, employees, or contractors. The parties acknowledge and agree that the obligation on the part of the Company not to make any derogatory statements as set forth in this paragraph shall only apply to the Company’s officers and directors.

The parties agree that this Release and Waiver does not in any way compromise or lessen Executive’s rights to be indemnified by the Company or otherwise be covered

under any applicable insurance policies that Executive would otherwise be entitled to receive and/or be covered by.

The parties agree that in no way does this mutual release of claims preclude Executive from enforcing his ownership rights pertaining to any stock or stock options which may have been purchased by Executive or granted to Executive by the Company pursuant to a written stock option grant and/or as memorialized in a written Board Resolution (and as reported periodically in the Company’s proxy statements).

BIOLASE TECHNOLOGY, INC.
By:
Title:
Dated:	___________________
Dated:	___________________
Richard L. Harrison

EX-10.3

EXHIBIT 10.3

AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT

(JEFFREY W. JONES)

This AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT (this “Amendment”) is entered into as of this 10th day of February 2006, by and between Jeffrey W. Jones, an individual (“Executive”) and BIOLASE Technology, Inc., a Delaware corporation (the “Company”), with reference to the following facts:¹

A. The Company and Executive have entered into that certain agreement dated December 29, 2005 (the “Agreement”), which provides for the terms and conditions of the employment of Executive by the Company.

B. The Company and Executive now desire to amend the Agreement to provide certain modified terms and conditions.

NOW THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties hereby agree to amend the Agreement as follows:

1. Paragraph 11 of the Agreement shall be modified to now read:

Benefit Entitlement. Executive shall be entitled to receive the severance benefits specified in Paragraph 12 A. in the event the Company involuntarily terminates Executive’s employment other than for Cause or Executive resigns for Good Reason (providing the notice and allowing the Company to cure as provided in Paragraph 10. C.) or the additional severance benefits provided for in Paragraph 12. B. following a Change of Control (as specified in Paragraph 12. B.), as the case may be, conditioned upon Executive properly executing, and not revoking or attempting to revoke, a bilateral release of claims against the Company, its Board, its affiliates, and their employees and agents substantially in the form of Exhibit B or, in the event of a change in the law that would limit the effect of the release attached as Exhibit B, a general release that would have the same scope and effect as the release attached as Exhibit B (such release, the “Mutual Release”).

All severance payments made to Executive pursuant to Paragraph 12 shall be subject to all applicable withholding requirements as set forth in Paragraph 3. B. Upon Executive executing the Mutual Release, the Company agrees to execute the same, releasing any claims it may have against Executive, his heirs, his representatives, predecessors, successors, assigns, spouses, heirs, executors and trustees as set forth in the Mutual Release. Under no circumstances shall any severance payments/benefits be payable pursuant to this Part Two if Executive’s employment is terminated for Cause or Executive resigns for something other

¹ Terms with initial letters capitalized and not otherwise defined herein have their respective meanings as set forth in the Agreement.

than Good Reason (as such term is defined in Paragraphs 10. B. and C., respectively) either following a Change of Control or otherwise, as the case may be.

2. Paragraph 12 of the Agreement shall be modified to now read:

A. Immediately after Executive’s right to revoke the Mutual Release expires, and provided that Executive does not exercise any right he may have to revoke the Mutual Release within the statutory time frame for doing so, Executive shall be paid a lump sum equal to one (1) year’s worth of his annual Base Salary in effect for him under Paragraph 3. A. at the time of his involuntary termination Without Cause or his resignation for Good Reason (currently calculated at two hundred fifty thousand dollars ($250,000).)

B. Upon (i) a Change of Control, as defined in this Paragraph 12.B., and (ii) any termination of Executive’s employment (x) by Executive for Good Reason or (y) by the Company other than for Cause, during the eighteen (18) months following a Change of Control (the “Termination Date”) and in lieu of any obligation to pay or provide Executive with the severance payments and other severance benefits within the time or manner specified in Paragraph 12. A. of the Agreement and provided that Executive does not exercise any right he may have to revoke the Mutual Release within the statutory time frame for doing so (the effective date of such Mutual Release being referred to herein as the “Date of Vesting”), each of Executive’s unvested stock options, as well as all shares of restricted stock, shall immediately become fully vested and exercisable as of the Date of Vesting. Additionally, Executive shall be entitled to receive 100% of Executive’s then current annual Base Salary plus the full amount of Executive’s potential Performance Bonus Target for the current year, which amount shall become fully vested upon the Date of Vesting, and which shall be paid in one-time lump sum no later than two and one half (2 1/2) months following the Termination Date. Further, Executive shall be entitled to receive from the Company paid COBRA premiums and reimbursement for any out-of-pocket costs, fees, charges or expenses associated with Executive’s (and his dependents’) receipt of medical and dental treatment for the twelve (12) month period following the Termination Date. It is the intent of Executive and the Company that Executive be reimbursed for said out-of-pocket costs, charges or expenses, up to a cap of three thousand dollars ($3,000) for a full twelve (12) month period immediately following the Termination Date. Executive had not previously been granted such a benefit. Further, the Company shall pay to Executive, in a single lump sum no later than two and one half (2  ¹/2) months following the Termination Date, an amount equal to twelve (12) times the then-current monthly lease payment for Executive’s vehicle, plus an amount equal to the maintenance and insurance costs incurred by Executive for his vehicle during the preceding twelve (12) months. To the extent that it is permissible by law and in compliance with all plan rules, the Company shall continue to provide Executive with coverage under the Company’s group life insurance plan, accidental death and

dismemberment plan and disability program during the twelve (12) month period following the Termination Date.

For purposes of the foregoing, a “Change of Control” shall mean the occurrence of any of the following events: (i) an acquisition of any voting securities of the Company by any “person” (as the term “person” is used for purposes of Section 13(d) or Section 14(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”)) immediately after which such person has “beneficial ownership” (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of 50% or more of the combined voting power of the Company’s then outstanding voting securities; or (ii) approval by the stockholders of the Company of: (x) a merger, consolidation, share exchange or reorganization involving the Company, unless the stockholders of the Company, immediately before such merger, consolidation, share exchange or reorganization, own, directly or indirectly immediately following such merger, consolidation, share exchange or reorganization, at least 50% of the combined voting power of the outstanding voting securities of the corporation that is the successor in such merger, consolidation, share exchange or reorganization in substantially the same proportion as their ownership of the voting securities immediately before such merger, consolidation, share exchange or reorganization; (y) a complete liquidation or dissolution of the Company; or (z) an agreement for the sale or other disposition of all or substantially all of the assets of the Company.

C. Parachute Payment. If any payment or benefit the Executive would receive pursuant a Change of Control or otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): (1) reduction of cash payments, (2) cancellation of accelerated vesting of equity awards, and (3) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s equity awards unless the Executive elects in writing a different order for cancellation.

The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. Alternatively, the Company may wish to retain its primary outside legal counsel to conduct said calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting or law firm required to be made hereunder.

The accounting or law firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Executive and the Company within fifteen (15) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Executive or the Company) or such other time as requested by the Executive or the Company. If the accounting or law firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting or law firm made hereunder shall be final, binding and conclusive upon the Executive and the Company.

D. The severance benefits provided Executive under this Paragraph 12 are the only severance benefits to which Executive is entitled upon the termination of his employment with the Company, and no other benefits shall be provided to Executive by the Company pursuant to any other severance plan or program of the Company. Executive acknowledges and agrees that but for his execution of this Agreement, he would not be entitled to such benefits.

E. Notwithstanding the foregoing, if the Executive is deemed to be a “specified employee” within the meaning of such term in Section 409A of the Internal Revenue Code (“Code”) at the time of the Executive’s termination/resignation of employment with the Company, and the severance payment(s) described in this Paragraph 12 is deemed to be deferred compensation payable in connection with the separation from service of the Executive with the Company that is subject to the requirements of Section 409A of the Code, then such severance payment(s) shall be paid on the sixth (6) month anniversary following the date of Executive’s separation from the service with the Company to the extent required to comply with the distribution requirements of Section 409A of the Code.

3. Entire Agreement; Inconsistency. This Amendment, together with the Agreement, constitutes the entire agreement and understanding between the Company and the Executive with respect to the subject matter hereof and supersedes all prior and contemporaneous written or verbal agreements and understandings between the Executive and the Company relating to such subject

matter. This Amendment may only be amended by written instrument signed by Executive and an officer of the Company specifically authorized by the Board of Directors for such purpose. Any and all prior agreements, understandings or representations relating to severance benefits are terminated and cancelled in their entirety and are of no further force or effect.

4. Counterparts. This Amendment may be executed in one or more counterparts, all of which together shall constitute one document.

IN WITNESS WHEREOF, this Amendment is made as of the date first written above.

		BIOLASE Technology, Inc.
Name:	/s/ JEFFREY W. JONES	By:	/s/ RICHARD L. HARRISON
	Jeffrey W. Jones, an individual	Its:	Executive Vice President, Chief Financial Officer and Secretary

EX-10.4

EXHIBIT 10.4

981 Calle Amanecer San Clemente, CA 92673 (949) 361-1200 PHONE (949) 366-1887 FAX

Memo

To:	Keith Bateman	From:	Robert E. Grant
CC:	Richard L Harrison	Date:	February 10, 2006
Re:	Severance Benefits Payable on Change of Control

In consideration of your employment by Biolase Technology, Inc. (the “Company” or “Biolase”), the compensation now and hereafter paid to you, this memorandum (hereinafter the “Agreement”) amends and modifies the terms of any employment agreement or offer letter between you and the Company that was entered into between you and the Company prior to or contemporaneously with the date stated on this Agreement.

1. Severance Benefits Upon Change of Control. Upon (i) a Change of Control, as defined herein, and (ii) any termination of your employment (x) by you for Good Reason (defined below) or (y) by the Company other than for Cause (defined below), during the eighteen (18) months following a Change of Control (the “Termination Date”) and provided that you do not exercise any right you may have to revoke the Release (as defined below) within the statutory time frame for doing so (the effective date of the Release being referred to herein as the “Date of Vesting”), each of your unvested stock options, as well as all shares of restricted stock, shall immediately become fully vested and exercisable as of the Date of Vesting. Additionally, you shall be entitled to receive 100% of your then current annual salary plus the full amount of your potential bonus for the current year, which amounts shall become fully vested upon the Date of Vesting, and which shall be paid in one-time lump sum no later than two and one half (2 1/2) months following the Termination Date. Should your employment agreement and/or offer letter not specifically prescribe an annual bonus, then the bonus shall be the same as the prior year’s bonus, if one was paid to you. If your employment agreement and/or offer letter do not specifically prescribe an annual bonus and you were not paid an annual bonus during the year prior to the Change of Control, then you will not be entitled to be paid a bonus upon your termination/resignation following a Change of Control as otherwise provided for herein. Further, you shall be entitled to receive from the Company paid COBRA premiums with respect to medical and dental insurance for the twelve (12) month period following the Termination Date. Further, and only if you were receiving a car allowance prior to the Change of Control, the Company shall pay you, in a single lump sum no later than two and one half (2  ¹/2) months following the Termination Date, an amount equal to twelve times the then-current monthly car allowance. To the extent that it is permissible by law and in compliance with all plan

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February 10, 2006                        

rules, the Company shall continue to provide you with coverage under the Company’s group life insurance, accidental death and dismemberment policy and disability program during the twelve (12) month period following the Termination Date.

For purposes of this Agreement, termination for “Good Reason” shall mean the resignation of employment by you within ninety (90) days following the occurrence of: (i) a change in your position with the Company which materially reduces your duties or level of responsibility; (ii) any requirement that you relocate (on a regular basis) your place of employment to an office outside of Orange County, California, provided such reduction, change or relocation is effected by the Company without your written consent. In order for you to resign for Good Reason, as defined herein, you must provide thirty (30) day’s advance written notice of such resignation to the Company. Further, you agree that should the Company remedy the basis for such resignation prior to the expiration of such thirty (30) days notice period, then you may not resign for Good Reason.

For purposes of this Agreement, termination for “Cause” shall mean the involuntary termination of the your employment for any of the following reasons:

(i) financial dishonesty, including, without limitation, misappropriation of funds or property, or any attempt by you to secure any personal profit related to the business or business opportunities of the Company without the informed, written approval of the Board;

(ii) refusal to comply with reasonable directives of the President and Chief Executive Officer and/or the Board;

(iii) breach of your fiduciary duties to the Company, or your gross negligence, reckless or willful misconduct in the performance of your duties;

(iv) failure to perform, or neglect in the performance of, your duties;

(v) misconduct which has a materially adverse effect upon the Company’s business or reputation;

(vi) the conviction of, or plea of nolo contendre to, or an misdemeanor involving dishonesty or fraud;

(vii) any breach of any material term or provision of this Agreement;

(viii) violation of Company policies including, without limitation, the Company’s policies on equal employment opportunity and prohibition of unlawful harassment; or

(ix) your death.

2. Change of Control Defined. For purposes of the foregoing, a “Change of Control” shall mean the occurrence of any of the following events: (i) an acquisition of any voting securities of the Company by any “person” (as the term “person” is used for purposes of Section 13(d) or Section 14(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”)) immediately after which such person has “beneficial ownership” (within the meaning of Rule 13d-3 promulgated

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February 10, 2006                        

under the 1934 Act) of 50% or more of the combined voting power of the Company’s then outstanding voting securities; or (ii) approval by the stockholders of the Company of: (x) a merger, consolidation, share exchange or reorganization involving the Company, unless the stockholders of the Company, immediately before such merger, consolidation, share exchange or reorganization, own, directly or indirectly immediately following such merger, consolidation, share exchange or reorganization, at least 50% of the combined voting power of the outstanding voting securities of the corporation that is the successor in such merger, consolidation, share exchange or reorganization in substantially the same proportion as their ownership of the voting securities immediately before such merger, consolidation, share exchange or reorganization; (y) a complete liquidation or dissolution of the Company; or (z) an agreement for the sale or other disposition of all or substantially all of the assets of the Company.

3. Parachute Payment. If any payment or benefit you would receive pursuant a Change of Control or otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the your receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the you elect in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): (1) reduction of cash payments, (2) cancellation of accelerated vesting of equity awards, and (3) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of your equity awards unless you elect in writing a different order for cancellation.

The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. Alternatively, the Company may wish to retain its primary outside legal counsel to conduct said calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting or law firm required to be made hereunder.

The accounting or law firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to you and the Company within fifteen (15) calendar days after the date on which your right to a Payment is triggered (if requested at that time by you or the Company) or such other time as requested by you or the Company. If the

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accounting or law firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish you and the Company with an opinion reasonably acceptable to you that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting or law firm made hereunder shall be final, binding and conclusive upon you and the Company.

4. Execution of Release as a Condition of Receiving Severance Benefits. Notwithstanding the foregoing, your entitlement to the severance benefits specified above is conditioned upon you properly executing, and not revoking or attempting to revoke, the bilateral release of claims against the Company, its board of directors (the “Board”), its affiliates, and their employees and agents substantially in the form of Exhibit A to this Amendment or, in the event of a change in the law that would limit the effect or scope of the release attached as Exhibit A, a general release in a form that would have the same scope and effect as the release attached as Exhibit A would have had prior to the change in law (the “Release”).

5. Applicability of IRC Code Sec. 409A. Notwithstanding the foregoing, if you are deemed to be a “specified employee” within the meaning of such term in Section 409A of the Internal Revenue Code (“Code”) at the time of your termination/resignation of employment with the Company, and the severance payment(s) described above is deemed to be deferred compensation payable in connection with the separation from your service with the Company that is subject to the requirements of Section 409A of the Code, then such severance payment(s) shall be paid on the sixth (6) month anniversary following the date of your separation from the service with the Company to the extent required to comply with the distribution requirements of Section 409A of the Code.

6. Governing Law. This Agreement will be governed by and construed according to the laws of the State of California, as such laws are applied to agreements entered into and to be performed entirely within California between California residents. By your signature below, you hereby expressly consent to the personal jurisdiction of the state and federal courts located in Orange County, California for any lawsuit filed there arising from or related to the terms of this Agreement.

7. Arbitration. Any controversy, claim or dispute between you and the Company directly or indirectly concerning this Agreement, or the breach or subject matter hereof, including, but not limited to, the granting, terms, vesting or exercisability of stock options, restricted stock, the payment of a bonus, and/or any type of additional compensation or wages, shall be finally settled by arbitration held in Orange County, California. The arbitration will be held under the auspices of either the American Arbitration Association (“AAA”) or Judicial Arbitration & Mediation Services, Inc. (“J•A•M•S”), with the designation of the sponsoring organization to be made by the party who did not initiate the claim. The arbitration shall be in accordance with the AAA’s then-current employment arbitration procedures (if AAA is designated) or the then-current J•A•M•S employment arbitration rules (if J•A•M•S is designated). The arbitrator shall be either a retired judge, or an attorney licensed to practice law in the state in which the arbitration is convened (the “Arbitrator”). The Arbitrator shall have jurisdiction to hear and rule on pre-hearing disputes and is authorized to hold pre-hearing conferences by telephone or in person, as the Arbitrator deems necessary. The Arbitrator shall have the authority to entertain a motion to dismiss, demurrer, and/or a motion for

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February 10, 2006                        

summary judgment by any party and shall apply the standards governing such motions under the applicable rules of civil procedure. The Arbitrator shall render a written award and opinion which reveals, however briefly, the essential findings and conclusions on which the award is based. The arbitration shall be final and binding upon you and the Company, except as otherwise provided for by the law applicable to review of arbitration decisions/awards. Either you or the Company may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement and/or to enforce an arbitration award. The Company will pay the Arbitrator’s fees and any other fees, costs or expenses unique to arbitration, including the filing fee, the fees and costs of the Arbitrator, and rental of a room to hold the arbitration hearing. However, if you are the party initiating the claim, you shall be responsible for contributing an amount equal to the filing fee to initiate a claim in the court of general jurisdiction in the state which you are (or was last) employed by the Company. You and the Company shall each pay for your/its own costs and attorneys’ fees, if any. However, if any action, suit or proceeding is brought under or in connection with this Agreement, the prevailing party herein shall be entitled to its costs and expenses, including reasonable attorneys’ fees.

8. At Will Employment. You acknowledge that neither this Agreement nor any action taken hereunder shall be construed as giving you any right to be retained in the employ of Biolase (nor any of its present or future subsidiaries or parents) nor shall interfere with or restrict in any way the rights of Biolase (nor any of its present or future subsidiaries or parents), which are hereby reserved, to discharge you at any time for any reason whatsoever, with or without good cause.

9. Entire Agreement; Inconsistency. This Agreement constitutes the entire agreement and understanding of the Company and you with respect to the subject matter hereof and supersedes all prior and contemporaneous written or verbal agreements and understandings between you and the Company relating to such subject matter. This Agreement may only be amended by written instrument signed by you and an officer of the Company specifically authorized by the Board for such purpose. Any and all prior agreements, understandings or representations relating to severance benefits are terminated and cancelled in their entirety and are of no further force or effect.

10. Counterparts. This Amendment may be executed in one or more counterparts, all of which together shall constitute one document.

Confidential	5
	Severance Benefits Payable on Change of Control

February 10, 2006                        

IN WITNESS WHEREOF, this Amendment is made as of the date first written above.

		BIOLASE Technology, Inc.
Name:	/s/ KEITH BATEMAN	By:	/s/ RICHARD L. HARRISON
	Keith Bateman, an individual	Its:	Executive Vice President, Chief Financial Officer and Secretary

Confidential	6
	Severance Benefits Payable on Change of Control

EXHIBIT A TO

KEITH BATEMAN MEMO ON SEVERANCE BENEFITS PAYABLE ON

CHANGE OF CONTROL

DATED FEBRUARY     , 2006

MUTUAL RELEASE AND WAIVER OF CLAIMS

In consideration of the payments and other benefits set forth in the Memo on Severance Benefits Payable on Change of Control dated February     , 2006 (the “Amendment “), to which this form shall be deemed to be attached, Biolase Technology, Inc. (the “Company” ) and Keith Bateman (“Executive”) hereby agree to the following mutual release and waiver of claims (“Release and Waiver” ).

In exchange for the consideration provided to Executive by the Amendment that Executive is not otherwise entitled to receive, Executive hereby generally and completely releases the Company and its directors, officers, employees, shareholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates, and assigns from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring prior to my signing this Release and Waiver. This general release includes, but is not limited to: (1) all claims arising out of or in any way related to Executive’s employment with the Company or the termination of that employment; (2) all claims related to Executive’s compensation or benefits from the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, or any other ownership interests in the Company; (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (5) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under Title VII of the 1964 Civil Rights Act, as amended, the Age Discrimination in Employment Act, the California Fair Employment and Housing Act, the Equal Pay Act of 1963, as amended, the provisions of the California Labor Code, the Americans with Disabilities Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), the Sarbanes-Oxley Act of 2002, and any other state, federal, or local laws and regulations relating to employment and/or employment discrimination. The only exceptions are claims Executive may have for unemployment compensation and worker’s compensation, base salary (through the date of termination), prorated incentive pay to the extent that the bonus criteria has been satisfactorily achieved as specified in Executive’s offer letter, outstanding business expenses, and unused vacation earned through the date of termination of Executive.

In consideration of Executive’s release of claims as set forth above, the Company, on behalf of itself and each of its respective officers, directors, shareholders, employees,

1

attorneys, partners, associates, agents, representatives, predecessors, successors, assigns, and anyone who could claim by or through them, past, present and future, hereby unconditionally and irrevocably releases and forever discharge Executive, his representatives, predecessors, successors, assigns, spouses, heirs, executors and trustees, past, present and future, from any and all claims, demands, causes of action, damages and expenses, whether known or unknown, suspected or unsuspected, with respect to (1) all claims arising out of or in any way related to Executive’s employment with the Company or the termination of that employment; and (2) all claims related to Executive’s compensation or benefits from the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, or any other ownership interests in the Company. By this release of claims, the Company is not releasing Executive from his continuing obligations under the Proprietary Information and Inventions Agreement dated             , 20         (the “Proprietary Information Agreement”).

Both Executive and the Company expressly waive and relinquish any and all rights and benefits they now have or may have in the future under the terms of Section 1542 of the Civil Code of the State of California (“Section 1542”), which sections reads in full as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

Notwithstanding Section 1542, and subject to the continuing obligations under the Proprietary Information Agreement, the Company and Executive knowingly and voluntarily waive the provisions of Section 1542 as well as any other statutory or common law provisions of similar effect and acknowledge and agrees that this waiver is an essential part of this Release and Waiver.

Executive acknowledges that, among other rights, Executive is waiving and releasing any rights Executive may have under ADEA, that this Release and Waiver is knowing and voluntary, and that the consideration given for this Release and Waiver is in addition to anything of value to which Executive was already entitled as an executive of the Company. Executive further acknowledge that Executive has been advised, as required by the Older Workers Benefit Protection Act, that: (a) the release and waiver granted herein does not relate to claims under the ADEA which may arise after this Release and Waiver is executed; (b) Executive is hereby advised to consult with an attorney prior to executing this Release and Waiver (although Executive may choose voluntarily not to do so); and (c) Executive has twenty-one (21) days from the date of termination of Executive’s employment with the Company in which to consider this Release and Waiver (although Executive may choose voluntarily to execute this Release and Waiver earlier); (d) Executive has seven (7) days following the execution of this Release and Waiver to revoke his consent to this Release and Waiver; and (e) this Release and Waiver shall not be effective until the seven (7) day revocation period has expired.

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Executive acknowledges his continuing obligations under the Proprietary Information Agreement. Nothing contained in this Release and Waiver shall be deemed to modify, amend or supersede the obligations set forth in that agreement.

By signing this Release and Waiver, Executive hereby represents that he is not aware of any affirmative conduct or the failure to act on the part of the Company, its officers, directors, and/or employees concerning the Company’s business practices, its reporting obligations, its customers and/or prospective customers, its products, and/or any other any other aspect of the Company’s business, which Executive has any reason to believe rises to the level of unfair, improper and/or unlawful conduct pursuant to any state or federal law, rule, regulation or order, including, but not limited to, any rule, regulation or decision promulgated or enforced by the Securities and Exchange Commission, or which has been promulgated or enforced by any other state or federal office or administrative body pursuant to the Sarbanes-Oxley Act of 2002.

With the exception of the terms set forth in the Proprietary Information Agreement, this Release and Waiver constitutes the complete, final and exclusive embodiment of the entire agreement between the Company and Executive with regard to the subject matter hereof. Executive is not relying on any promise or representation by the Company that is not expressly stated herein and the Company is not relying on any promise or representation by Executive that is not expressly stated herein. This Release and Waiver may only be modified by a writing signed by both Executive and a duly authorized officer of the Company.

The Company and Executive agree that for a period of ten (10) years after Executive’s employment with the Company ceases, they will not, in any communication with any person or entity, including any actual or potential customer, client, investor, vendor, or business partner of the Company, or any third party media outlet, make any derogatory or disparaging or critical negative statements – orally, written or otherwise – against the other, or against the Executive’s affiliates, any of the Company’s directors, officers, agents, employees, or contractors. The parties acknowledge and agree that the obligation on the part of the Company not to make any derogatory statements as set forth in this paragraph shall only apply to the Company’s officers and directors.

The parties agree that this Release and Waiver does not in any way compromise or lessen Executive’s rights to be indemnified by the Company or otherwise be covered under any applicable insurance policies that Executive would otherwise be entitled to receive and/or be covered by.

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The parties agree that in no way does this mutual release of claims preclude Executive from enforcing his ownership rights pertaining to any stock or stock options which may have been purchased by Executive or granted to Executive by the Company pursuant to a written stock option grant and/or as memorialized in a written Board Resolution (and as reported periodically in the Company’s proxy statements).

BIOLASE TECHNOLOGY, INC.
By:
Title:
Dated:	____________________
Dated:	____________________
Keith Bateman

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EX-10.5

EXHIBIT 10.5

981 Calle Amanecer San Clemente, CA 92673 (949) 361-1200 PHONE (949) 366-1887 FAX

Memo

To:	James Haefner	From:	Robert E. Grant
CC:	Richard L Harrison	Date:	February 10, 2006
Re:	Severance Benefits Payable on Change of Control

In consideration of your employment by Biolase Technology, Inc. (the “Company” or “Biolase”), the compensation now and hereafter paid to you, this memorandum (hereinafter the “Agreement”) amends and modifies the terms of any employment agreement or offer letter between you and the Company that was entered into between you and the Company prior to or contemporaneously with the date stated on this Agreement.

1. Severance Benefits Upon Change of Control. Upon (i) a Change of Control, as defined herein, and (ii) any termination of your employment (x) by you for Good Reason (defined below) or (y) by the Company other than for Cause (defined below), during the eighteen (18) months following a Change of Control (the “Termination Date”) and provided that you do not exercise any right you may have to revoke the Release (as defined below) within the statutory time frame for doing so (the effective date of the Release being referred to herein as the “Date of Vesting”), each of your unvested stock options, as well as all shares of restricted stock, shall immediately become fully vested and exercisable as of the Date of Vesting. Additionally, you shall be entitled to receive 100% of your then current annual salary plus the full amount of your potential bonus for the current year, which amounts shall become fully vested upon the Date of Vesting, and which shall be paid in one-time lump sum no later than two and one half (2 1/2) months following the Termination Date. Should your employment agreement and/or offer letter not specifically prescribe an annual bonus, then the bonus shall be the same as the prior year’s bonus, if one was paid to you. If your employment agreement and/or offer letter do not specifically prescribe an annual bonus and you were not paid an annual bonus during the year prior to the Change of Control, then you will not be entitled to be paid a bonus upon your termination/resignation following a Change of Control as otherwise provided for herein. Further, you shall be entitled to receive from the Company paid COBRA premiums with respect to medical and dental insurance for the twelve (12) month period following the Termination Date. Further, and only if you were receiving a car allowance prior to the Change of Control, the Company shall pay you, in a single lump sum no later than two and one half (2  ¹/2) months following the Termination Date, an amount equal to twelve times the then-current monthly car allowance. To the extent that it is permissible by law and in compliance with all plan

Confidential	1
	Severance Benefits Payable on Change of Control

February 10, 2006                        

rules, the Company shall continue to provide you with coverage under the Company’s group life insurance, accidental death and dismemberment policy and disability program during the twelve (12) month period following the Termination Date.

For purposes of this Agreement, termination for “Good Reason” shall mean the resignation of employment by you within ninety (90) days following the occurrence of: (i) a change in your position with the Company which materially reduces your duties or level of responsibility; (ii) any requirement that you relocate (on a regular basis) your place of employment to an office outside of Orange County, California, provided such reduction, change or relocation is effected by the Company without your written consent. In order for you to resign for Good Reason, as defined herein, you must provide thirty (30) day’s advance written notice of such resignation to the Company. Further, you agree that should the Company remedy the basis for such resignation prior to the expiration of such thirty (30) days notice period, then you may not resign for Good Reason.

For purposes of this Agreement, termination for “Cause” shall mean the involuntary termination of the your employment for any of the following reasons:

(i) financial dishonesty, including, without limitation, misappropriation of funds or property, or any attempt by you to secure any personal profit related to the business or business opportunities of the Company without the informed, written approval of the Board;

(ii) refusal to comply with reasonable directives of the President and Chief Executive Officer and/or the Board;

(iii) breach of your fiduciary duties to the Company, or your gross negligence, reckless or willful misconduct in the performance of your duties;

(iv) failure to perform, or neglect in the performance of, your duties;

(v) misconduct which has a materially adverse effect upon the Company’s business or reputation;

(vi) the conviction of, or plea of nolo contendre to, or an misdemeanor involving dishonesty or fraud;

(vii) any breach of any material term or provision of this Agreement;

(viii) violation of Company policies including, without limitation, the Company’s policies on equal employment opportunity and prohibition of unlawful harassment; or

(ix) your death.

2. Change of Control Defined. For purposes of the foregoing, a “Change of Control” shall mean the occurrence of any of the following events: (i) an acquisition of any voting securities of the Company by any “person” (as the term “person” is used for purposes of Section 13(d) or Section 14(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”)) immediately after which such person has “beneficial ownership” (within the meaning of Rule 13d-3 promulgated

Confidential	2
	Severance Benefits Payable on Change of Control

February 10, 2006                        

under the 1934 Act) of 50% or more of the combined voting power of the Company’s then outstanding voting securities; or (ii) approval by the stockholders of the Company of: (x) a merger, consolidation, share exchange or reorganization involving the Company, unless the stockholders of the Company, immediately before such merger, consolidation, share exchange or reorganization, own, directly or indirectly immediately following such merger, consolidation, share exchange or reorganization, at least 50% of the combined voting power of the outstanding voting securities of the corporation that is the successor in such merger, consolidation, share exchange or reorganization in substantially the same proportion as their ownership of the voting securities immediately before such merger, consolidation, share exchange or reorganization; (y) a complete liquidation or dissolution of the Company; or (z) an agreement for the sale or other disposition of all or substantially all of the assets of the Company.

3. Parachute Payment. If any payment or benefit you would receive pursuant a Change of Control or otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the your receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless the you elect in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): (1) reduction of cash payments, (2) cancellation of accelerated vesting of equity awards, and (3) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of your equity awards unless you elect in writing a different order for cancellation.

The accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change of Control shall perform the foregoing calculations. Alternatively, the Company may wish to retain its primary outside legal counsel to conduct said calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, then the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting or law firm required to be made hereunder.

The accounting or law firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to you and the Company within fifteen (15) calendar days after the date on which your right to a Payment is triggered (if requested at that time by you or the Company) or such other time as requested by you or the Company. If the

Confidential	3
	Severance Benefits Payable on Change of Control

February 10, 2006                        

accounting or law firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish you and the Company with an opinion reasonably acceptable to you that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting or law firm made hereunder shall be final, binding and conclusive upon you and the Company.

4. Execution of Release as a Condition of Receiving Severance Benefits. Notwithstanding the foregoing, your entitlement to the severance benefits specified above is conditioned upon you properly executing, and not revoking or attempting to revoke, the bilateral release of claims against the Company, its board of directors (the “Board”), its affiliates, and their employees and agents substantially in the form of Exhibit A to this Amendment or, in the event of a change in the law that would limit the effect or scope of the release attached as Exhibit A, a general release in a form that would have the same scope and effect as the release attached as Exhibit A would have had prior to the change in law (the “Release”).

5. Applicability of IRC Code Sec. 409A. Notwithstanding the foregoing, if you are deemed to be a “specified employee” within the meaning of such term in Section 409A of the Internal Revenue Code (“Code”) at the time of your termination/resignation of employment with the Company, and the severance payment(s) described above is deemed to be deferred compensation payable in connection with the separation from your service with the Company that is subject to the requirements of Section 409A of the Code, then such severance payment(s) shall be paid on the sixth (6) month anniversary following the date of your separation from the service with the Company to the extent required to comply with the distribution requirements of Section 409A of the Code.

6. Governing Law. This Agreement will be governed by and construed according to the laws of the State of California, as such laws are applied to agreements entered into and to be performed entirely within California between California residents. By your signature below, you hereby expressly consent to the personal jurisdiction of the state and federal courts located in Orange County, California for any lawsuit filed there arising from or related to the terms of this Agreement.

7. Arbitration. Any controversy, claim or dispute between you and the Company directly or indirectly concerning this Agreement, or the breach or subject matter hereof, including, but not limited to, the granting, terms, vesting or exercisability of stock options, restricted stock, the payment of a bonus, and/or any type of additional compensation or wages, shall be finally settled by arbitration held in Orange County, California. The arbitration will be held under the auspices of either the American Arbitration Association (“AAA”) or Judicial Arbitration & Mediation Services, Inc. (“J•A•M•S”), with the designation of the sponsoring organization to be made by the party who did not initiate the claim. The arbitration shall be in accordance with the AAA’s then-current employment arbitration procedures (if AAA is designated) or the then-current J•A•M•S employment arbitration rules (if J•A•M•S is designated). The arbitrator shall be either a retired judge, or an attorney licensed to practice law in the state in which the arbitration is convened (the “Arbitrator”). The Arbitrator shall have jurisdiction to hear and rule on pre-hearing disputes and is authorized to hold pre-hearing conferences by telephone or in person, as the Arbitrator deems necessary. The Arbitrator shall have the authority to entertain a motion to dismiss, demurrer, and/or a motion for

Confidential	4
	Severance Benefits Payable on Change of Control

February 10, 2006                        

summary judgment by any party and shall apply the standards governing such motions under the applicable rules of civil procedure. The Arbitrator shall render a written award and opinion which reveals, however briefly, the essential findings and conclusions on which the award is based. The arbitration shall be final and binding upon you and the Company, except as otherwise provided for by the law applicable to review of arbitration decisions/awards. Either you or the Company may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement and/or to enforce an arbitration award. The Company will pay the Arbitrator’s fees and any other fees, costs or expenses unique to arbitration, including the filing fee, the fees and costs of the Arbitrator, and rental of a room to hold the arbitration hearing. However, if you are the party initiating the claim, you shall be responsible for contributing an amount equal to the filing fee to initiate a claim in the court of general jurisdiction in the state which you are (or was last) employed by the Company. You and the Company shall each pay for your/its own costs and attorneys’ fees, if any. However, if any action, suit or proceeding is brought under or in connection with this Agreement, the prevailing party herein shall be entitled to its costs and expenses, including reasonable attorneys’ fees.

8. At Will Employment. You acknowledge that neither this Agreement nor any action taken hereunder shall be construed as giving you any right to be retained in the employ of Biolase (nor any of its present or future subsidiaries or parents) nor shall interfere with or restrict in any way the rights of Biolase (nor any of its present or future subsidiaries or parents), which are hereby reserved, to discharge you at any time for any reason whatsoever, with or without good cause.

9. Entire Agreement; Inconsistency. This Agreement constitutes the entire agreement and understanding of the Company and you with respect to the subject matter hereof and supersedes all prior and contemporaneous written or verbal agreements and understandings between you and the Company relating to such subject matter. This Agreement may only be amended by written instrument signed by you and an officer of the Company specifically authorized by the Board for such purpose. Any and all prior agreements, understandings or representations relating to severance benefits are terminated and cancelled in their entirety and are of no further force or effect.

10. Counterparts. This Amendment may be executed in one or more counterparts, all of which together shall constitute one document.

Confidential	5
	Severance Benefits Payable on Change of Control

February 10, 2006                        

IN WITNESS WHEREOF, this Amendment is made as of the date first written above.

		BIOLASE Technology, Inc.
Name:	/s/ JAMES HAEFNER	By:	/s/ RICHARD L. HARRISON
	James Haefner, an individual	Its:	Executive Vice President, Chief Financial Officer and Secretary

Confidential	6
	Severance Benefits Payable on Change of Control

EXHIBIT A TO

JAMES HAEFNER MEMO ON SEVERANCE BENEFITS PAYABLE ON

CHANGE OF CONTROL

DATED FEBRUARY     , 2006

MUTUAL RELEASE AND WAIVER OF CLAIMS

In consideration of the payments and other benefits set forth in the Memo on Severance Benefits Payable on Change of Control dated February     , 2006 (the “Amendment “), to which this form shall be deemed to be attached, Biolase Technology, Inc. (the “Company” ) and James Haefner (“Executive”) hereby agree to the following mutual release and waiver of claims (“Release and Waiver” ).

In exchange for the consideration provided to Executive by the Amendment that Executive is not otherwise entitled to receive, Executive hereby generally and completely releases the Company and its directors, officers, employees, shareholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates, and assigns from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring prior to my signing this Release and Waiver. This general release includes, but is not limited to: (1) all claims arising out of or in any way related to Executive’s employment with the Company or the termination of that employment; (2) all claims related to Executive’s compensation or benefits from the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, or any other ownership interests in the Company; (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (5) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under Title VII of the 1964 Civil Rights Act, as amended, the Age Discrimination in Employment Act, the California Fair Employment and Housing Act, the Equal Pay Act of 1963, as amended, the provisions of the California Labor Code, the Americans with Disabilities Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), the Sarbanes-Oxley Act of 2002, and any other state, federal, or local laws and regulations relating to employment and/or employment discrimination. The only exceptions are claims Executive may have for unemployment compensation and worker’s compensation, base salary (through the date of termination), prorated incentive pay to the extent that the bonus criteria has been satisfactorily achieved as specified in Executive’s offer letter of the Amendment, outstanding business expenses, and unused vacation earned through the date of termination of Executive.

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In consideration of Executive’s release of claims as set forth above, the Company, on behalf of itself and each of its respective officers, directors, shareholders, employees, attorneys, partners, associates, agents, representatives, predecessors, successors, assigns, and anyone who could claim by or through them, past, present and future, hereby unconditionally and irrevocably releases and forever discharge Executive, his representatives, predecessors, successors, assigns, spouses, heirs, executors and trustees, past, present and future, from any and all claims, demands, causes of action, damages and expenses, whether known or unknown, suspected or unsuspected, with respect to (1) all claims arising out of or in any way related to Executive’s employment with the Company or the termination of that employment; and (2) all claims related to Executive’s compensation or benefits from the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, or any other ownership interests in the Company. By this release of claims, the Company is not releasing Executive from his continuing obligations under the Proprietary Information and Inventions Agreement dated                 , 20         (the “Proprietary Information Agreement”).

Both Executive and the Company expressly waive and relinquish any and all rights and benefits they now have or may have in the future under the terms of Section 1542 of the Civil Code of the State of California (“Section 1542”), which sections reads in full as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

Notwithstanding Section 1542, and subject to the continuing obligations under the Proprietary Information Agreement, the Company and Executive knowingly and voluntarily waive the provisions of Section 1542 as well as any other statutory or common law provisions of similar effect and acknowledge and agrees that this waiver is an essential part of this Release and Waiver.

Executive acknowledges that, among other rights, Executive is waiving and releasing any rights Executive may have under ADEA, that this Release and Waiver is knowing and voluntary, and that the consideration given for this Release and Waiver is in addition to anything of value to which Executive was already entitled as an executive of the Company. Executive further acknowledge that Executive has been advised, as required by the Older Workers Benefit Protection Act, that: (a) the release and waiver granted herein does not relate to claims under the ADEA which may arise after this Release and Waiver is executed; (b) Executive is hereby advised to consult with an attorney prior to executing this Release and Waiver (although Executive may choose voluntarily not to do so); and (c) Executive has twenty-one (21) days from the date of termination of Executive’s employment with the Company in which to consider this Release and Waiver (although Executive may choose voluntarily to execute this Release and Waiver earlier); (d) Executive has seven (7) days following the execution of this

2

Release and Waiver to revoke his consent to this Release and Waiver; and (e) this Release and Waiver shall not be effective until the seven (7) day revocation period has expired.

Executive acknowledges his continuing obligations under the Proprietary Information Agreement. Nothing contained in this Release and Waiver shall be deemed to modify, amend or supersede the obligations set forth in that agreement.

By signing this Release and Waiver, Executive hereby represents that he is not aware of any affirmative conduct or the failure to act on the part of the Company, its officers, directors, and/or employees concerning the Company’s business practices, its reporting obligations, its customers and/or prospective customers, its products, and/or any other any other aspect of the Company’s business, which Executive has any reason to believe rises to the level of unfair, improper and/or unlawful conduct pursuant to any state or federal law, rule, regulation or order, including, but not limited to, any rule, regulation or decision promulgated or enforced by the Securities and Exchange Commission, or which has been promulgated or enforced by any other state or federal office or administrative body pursuant to the Sarbanes-Oxley Act of 2002.

With the exception of the terms set forth in the Proprietary Information Agreement, this Release and Waiver constitutes the complete, final and exclusive embodiment of the entire agreement between the Company and Executive with regard to the subject matter hereof. Executive is not relying on any promise or representation by the Company that is not expressly stated herein and the Company is not relying on any promise or representation by Executive that is not expressly stated herein. This Release and Waiver may only be modified by a writing signed by both Executive and a duly authorized officer of the Company.

The Company and Executive agree that for a period of ten (10) years after Executive’s employment with the Company ceases, they will not, in any communication with any person or entity, including any actual or potential customer, client, investor, vendor, or business partner of the Company, or any third party media outlet, make any derogatory or disparaging or critical negative statements – orally, written or otherwise – against the other, or against the Executive’s affiliates, any of the Company’s directors, officers, agents, employees, or contractors. The parties acknowledge and agree that the obligation on the part of the Company not to make any derogatory statements as set forth in this paragraph shall only apply to the Company’s officers and directors.

The parties agree that this Release and Waiver does not in any way compromise or lessen Executive’s rights to be indemnified by the Company or otherwise be covered under any applicable insurance policies that Executive would otherwise be entitled to receive and/or be covered by.

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The parties agree that in no way does this mutual release of claims preclude Executive from enforcing his ownership rights pertaining to any stock or stock options which may have been purchased by Executive or granted to Executive by the Company pursuant to a written stock option grant and/or as memorialized in a written Board Resolution (and as reported periodically in the Company’s proxy statements).

BIOLASE TECHNOLOGY, INC.
By:
Title:
Dated:	____________________
Dated:	____________________
James Haefner

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