sc13dza

0000950123-10-058962.txt : 20100617 0000950123-10-058962.hdr.sgml : 20100617 20100617165938 ACCESSION NUMBER: 0000950123-10-058962 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20100617 DATE AS OF CHANGE: 20100617 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: PIGNATELLI FEDERICO CENTRAL INDEX KEY: 0001270560 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: BIOLASE TECHNOLOGY INC STREET 2: 4 CROMWELL CITY: IRVINE STATE: CA ZIP: 92618 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BIOLASE TECHNOLOGY INC CENTRAL INDEX KEY: 0000811240 STANDARD INDUSTRIAL CLASSIFICATION: DENTAL EQUIPMENT & SUPPLIES [3843] IRS NUMBER: 870442441 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-47361 FILM NUMBER: 10903874 BUSINESS ADDRESS: STREET 1: 4 CROMWELL CITY: IRVINE STATE: CA ZIP: 92618 BUSINESS PHONE: 949-361-1200 MAIL ADDRESS: STREET 1: 4 CROMWELL CITY: IRVINE STATE: CA ZIP: 92618 FORMER COMPANY: FORMER CONFORMED NAME: LASER MEDICAL TECHNOLOGY INC DATE OF NAME CHANGE: 19941117 FORMER COMPANY: FORMER CONFORMED NAME: LASER ENDO TECHNIC CORP DATE OF NAME CHANGE: 19920708 FORMER COMPANY: FORMER CONFORMED NAME: PAMPLONA CAPITAL CORP DATE OF NAME CHANGE: 19911104 SC 13D/A 1 a56524sc13dza.htm SC 13D/A sc13dza

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
13d-1(a) AND AMENDMENTS THERETO FILED
PURSUANT TO RULE 13d-2(a)

Under the Securities Exchange Act of 1934
(Amendment No. 3)

BIOLASE TECHNOLOGY, INC.

(Name of Issuer)

Common Stock, $0.001 par value per share

(Title of Class of Securities)

090911108

(CUSIP Number)

Federico Pignatelli
Pier 59 Studios
Pier 59
Chelsea Pier
New York, NY 10011
(917) 960-3200

Copies to:
Bruce D. Meyer
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7979

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

June 16, 2010

(Date of Event Which Requires Filing of this Statement)

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

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).


CUSIP No.		090911108

NAMES OF REPORTING PERSONS

Federico Pignatelli

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)

(a) o

(b) o

SEC USE ONLY

SOURCE OF FUNDS (SEE INSTRUCTIONS)

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
N/A

CITIZENSHIP OR PLACE OF ORGANIZATION

United States

SOLE VOTING POWER

NUMBER OF

1,345,250

SHARED VOTING POWER

BENEFICIALLY

OWNED BY

EACH

SOLE DISPOSITIVE POWER

REPORTING

PERSON

1,345,250

WITH

10.

SHARED DISPOSITIVE POWER

11.

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

1,345,250

12.

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
N/A

13.

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

5.4%¹

14.

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

¹ Based upon 24,388,778 shares of Common Stock outstanding as reported in the Issuer’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on May 17, 2010.

TABLE OF CONTENTS


	Item 1. Security and Issuer.
	Item 4. Purpose of Transaction.
	Item 7. Material to Be Filed as Exhibits.
SIGNATURE
EX-99.3

This Amendment No. 3 (this “Amendment”) amends and supplements the Schedule 13D filed on May 17, 2010, as amended by Amendment No. 1 filed on June 8, 2010 and Amendment No. 2 filed on June 11, 2010 (as amended and supplemented, the “Schedule 13D”), by the Reporting Person relating to the common stock, par value $0.001 per share (“Common Stock”) of Biolase Technology, Inc., a Delaware corporation (the “Issuer”). Information reported in the Schedule 13D remains in effect except to the extent that it is amended, supplemented, restated or superseded by information contained in this Amendment. Capitalized terms used but not defined in this Amendment have the respective meanings set forth in the Schedule 13D.

Item 1. Security and Issuer.

Item 1 is hereby amended and restated as follows:

This Amendment, which relates to the Reporting Person’s beneficial ownership of the Issuer’s Common Stock, is being filed to supplement the disclosure in Item 4 and amend and restate Item 7 of the Schedule 13D. The principal executive offices of the Issuer are located at 4 Cromwell, Irvine, California 92618.

Item 4. Purpose of Transaction.

Item 4 of the Schedule 13D is hereby supplemented as follows:

As previously disclosed in Amendment No. 1 to the Original Filing, which the Reporting Person filed with the SEC on June 8, 2010, the Reporting Person delivered a letter to the Secretary of the Issuer requesting that the Secretary call a special stockholder meeting by June 9, 2010. As of the date hereof, the Secretary has not called such meeting. Given the failure of the Secretary to call such meeting and the importance of the matters for which the Reporting Person requested such meeting to the Issuer’s stockholders, on June 16, 2010, at the direction of the Reporting Person, Brown Brothers Harriman & Co., as a nominee and non-discretionary custodial agent of the Reporting Person, sent a letter (the “Written Consent Letter”) to the Secretary of the Issuer requesting that the Board of Directors of the Issuer fix a record date for stockholders entitled to take action by written consent with respect to the following matters: (i) removal of all persons serving as directors of the Issuer, other than himself and Mr. David M. Mulder; (ii) appointment of three new directors to fill the vacancies created by the removal of certain of the existing directors; and (iii) amend Article 3, Section 3.2 of the Bylaws to set the Board size at five with the ability of the Board to set a different size by the unanimous vote of all members of the Board.

The Reporting Person intends to file a proxy statement with the SEC for purposes of soliciting proxies in relation to the foregoing stockholder action by written consent and plans to engage Innisfree M&A Incorporated to assist him in the solicitation of such proxies. The Reporting Person will view any action by the Issuer to issue additional securities on or after the date hereof as part of the Board’s efforts to entrench itself and disenfranchise the Issuer’s existing stockholders.

A copy of the Written Consent Letter is filed herewith and attached hereto as Exhibit 3 and is incorporated by reference herein. The description of the Written Consent Letter is qualified it its entirety by reference to the attached Exhibit 3.

Item 7. Material to Be Filed as Exhibits.

Item 7 is hereby amended and restated as follows:

Exhibit 1	—	Letter to Secretary of Biolase Technology, Inc., dated June 7, 2010 (filed as Exhibit 1 to Amendment No. 1 to Schedule 13D, filed on June 8, 2010).

Exhibit 2	—	Response Letter from Special Committee of Board of Directors of Biolase Technology, Inc. to Federico Pignatelli, dated June 10, 2010 (filed as Exhibit 99.1 to the Issuer’s Current Report on Form 8-K, filed on June 11, 2010).

Exhibit 3	—	Letter to Secretary of Biolase Technology, Inc., dated June 16, 2010.

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.



/s/ Federico Pignatelli				June 17, 2010
Federico Pignatelli

EX-99.3 2 a56524exv99w3.htm EX-99.3 exv99w3

[Brown Brothers Harriman & Co. Letterhead]

Exhibit 3

June 16, 2010

DELIVERED BY HAND AND BY U.S. MAIL, RETURN RECEIPT REQUESTED

Secretary
BIOLASE Technology, Inc.
4 Cromwell
Irvine, CA 92618


Re:		Article 2, Section 2.10 Bylaw Request for Board of Directors to Fix a Record Date for Stockholder Action Without a Meeting

Dear Mr. Mulder:

At the direction of and as nominee of Mr. Federico Pignatelli, the beneficial owner of 1,345,250 shares of common stock, par value $0.01 per share (“Common Stock”) of BIOLASE Technology, Inc. (the “Company”), Brown Brothers Harriman & Co. (“BBH”) as nominee and non-discretionary custodial agent of 1,030,250 of such shares hereby requests pursuant to Article 2, Section 2.10(b) of the Fourth Amended and Restated Bylaws (the “Bylaws”) of the Company that the Board of Directors (the “Board”) of the Company fix a record date for purposes of determining the stockholders entitled to take the actions outlined below by written consent. Pursuant to Article 2, Section 2.10(b) of the Bylaws, if the Board fails to set a record date within 10 days of receipt of this letter, the record date shall be the first date on which a valid signed written consent setting forth the actions taken or proposed to be taken is delivered to the Company. Mr. Pignatelli intends to engage Innisfree M&A Incorporated to solicit proxies in connection with the actions proposed below.

In connection with this request and Section 2.10(c)(i) of the Bylaws, BBH, acting solely in its agency capacity as custodian and record-holder, and not as principal or with any other interest in the matters set forth herein, hereby certifies to you the following as of the date hereof: (i) these shares are held through DTCC and the name that appears on the Company’s books is CEDE and Co., the nominee of DTCC; (ii) 1,030,250 shares of Common Stock is credited to BBH’s account at DTCC (Broker 10), and therefore pursuant to DTCC Rules and other relevant documents BBH is entitled to take action by written consent with respect to the matters set forth in this letter; (iii) Mr. Pignatelli is the record owner of 0 shares of Common Stock; (iv) BBH does not beneficially own (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as amended) any shares of Common Stock and there are no shares of any class or series of the Company that BBH has the right to acquire beneficial ownership of at any time; (v) Mr. Pignatelli beneficially owns (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as amended) 1,345,250 shares of Common Stock, which includes 315,000 shares of Common Stock underlying stock options which are exercisable within 60 days of the date hereof; (vi) except as provided in clause (v), there are no shares of any class or series of the Company that Mr. Pignatelli has the right to acquire beneficial ownership of at any time in the future; (vii) Mr. Pignatelli is not party to any arrangement, agreement or understanding (including any derivative

or short positions, profit interests, swaps, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares), nor has any such arrangement, agreement or understanding been entered into on behalf of Mr. Pignatelli, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of Mr. Pignatelli with respect to shares of the Company; (viii) Mr. Pignatelli does not hold any proxies, nor are there any agreements, arrangements, understandings or relationships pursuant to which Mr. Pignatelli has or shares a right to vote any shares of any class or series of the Company (other than the shares for which Mr. Pignatelli is the beneficial owner of as disclosed in clause (v) above); and (ix) Mr. Pignatelli is not entitled to any performance related fee based on any increase or decrease in the value of shares of any class or series of the Company.

Set forth below is a description of each action proposed be taken by the Company’s stockholders by written consent, followed by a brief description of the reason for each such action and the material interests of Mr. Pignatelli in such actions. Set forth on Exhibit A is the text of the proposed resolutions to be acted upon by the Company’s stockholders. Mr. Pignatelli is not party to any agreements, arrangements or understandings with any other person or entity in connection with this request or the proposed actions by written consent.

Proposed Actions:

The removal, without cause, of all persons serving as directors of the Company, other than Federico Pignatelli and David M. Mulder, including without limitation:

George V. d’Arbeloff
Robert M Anderton
James R. Largent
Gregory D. Waller

The appointment of three new directors to fill the vacancy created by the removal of George V. d’Arbeloff, Robert M. Anderton, James R. Largent and Greggory D. Waller, with the identities of such individuals to be disclosed to the Company upon their selection by Mr. Pignatelli.

Amend Article 3, Section 3.2 of the Bylaws in its entirety to read as follows (marked to show changes):

Section 3.2 Number.

stockholders. Each director shall hold office until the earlier to occur of (a) the annual meeting of stockholders next succeeding his or her election or appointment and ~~until~~the election and qualification of his or her successor ~~is elected and qualified or until~~ or (b)his or her earlier resignation or removal.

Reasons for Proposed Actions:

The actions outlined above are being proposed to be taken by the Company’s stockholders as Mr. Pignatelli believes that all directors, but him and Mr. Mulder, have demonstrated an inability to successfully manage the affairs of the Company and it is therefore in the best interests of the Company and all its stockholders to remove Messrs. d’Arebloff, Anderton, Largent and Waller as directors of the Company and replace them with directors who have the knowledge, experience and skills to successfully manage the affairs of the Company. In addition, Mr. Pignatelli is proposing to set the Board size at five as he believes that is the appropriate size for the Board given the Company’s size and structure.

Material Interests:

Mr. Pignatelli in his capacity as a stockholder of the Company does not have any material interests in any of the foregoing actions. As a director of the Company, however, Mr. Pignatelli may deemed to have a material interest in each of the proposed actions as such actions will allow him to reconstitute the Board and appoint three directors selected by him.

In accordance with Section 2.10(d) of the Bylaws, BBH hereby affirms to you that it will update and supplement the information set forth herein, if necessary, so that the information is true and correct as of the record date for determining stockholders eligible to take the actions set forth above and on Exhibit A and as of the date that is five business days prior to the date the consent solicitation is commenced.


Very truly yours,
/s/ Julia Dumont

Brown Brothers Harriman & Co.

cc: Federico Pignatelli
George V. d’Arbeloff
Robert M Anderton
James R. Largent
Gregory D. Waller
Bill Cernius
Michael Carroll

Exhibit A

Text of Proposed Stockholder Resolutions to be Acted Upon by Written Consent

RESOLVED, that each of George d’Arbeloff, Robert M. Anderton, James R. Largent and Greggory D. Waller, are hereby removed, without cause, as directors of BIOLASE Technology, Inc. (the “Company”), effective immediately;

RESOLVED, that effective immediately upon the removal of George d’Arbeloff, Robert M. Anderton, James R. Largent and Greggory D. Waller as directors of the Company, each of [___], [___] and [___] are hereby appointed directors of the Company; and,

RESOLVED, that effective immediately upon the removal of George d’Arbeloff, Robert M. Anderton, James R. Largent and Greggory D. Waller as directors of the Company, Article 3, Section 3.2 of the Fourth Amended and Restated Bylaws of the Company is hereby amended in its entirety to read as follows (marked to show changes):

Section 3.2 Number.

The number of directors which shall constitute the whole Board shall be fixed at five (5) unless all members of the Board unanimously vote to set the size of the Board at a number other than five (5), in which case the number of directors which shall constitute the whole Board shall be such number as unanimously approved by all members of the Board. ~~from time to time by the resolution of the Board. In no event shall the be fixed by the Board at less than three (3) or more than nine (9).~~ With the exception of the initial Board which shall be elected by the incorporator of the Corporation, and except as provided otherwise in these Bylaws, directors shall be elected at, the annual meeting of stockholders. Each director shall hold office until the earlier to occur of (a) the annual meeting of stockholders next succeeding his or her election or appointment and until the election and qualification of his or her successor ~~is elected and qualified or until~~ or (b) his or her earlier resignation or removal.

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