UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
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Securities Exchange Act of 1934
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BIOLASE TECHNOLOGY, INC.
 
(Name of Registrant as Specified In Its Charter)
 
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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(BIOLASE LOGO)
 
BIOLASE TECHNOLOGY, INC.
 
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD MAY 5, 20102011
 
TO OUR STOCKHOLDERS:
 
NOTICE IS HEREBY GIVEN that the annual meeting of stockholders of BIOLASE Technology, Inc., a Delaware corporation, will be held on Wednesday,Thursday, May 5, 2010,2011, at 9:11:00 a.m. local time at the Company’s corporate headquarters, located at 4 Cromwell, Irvine, CA,California, 92618, for the following purposes, as more fully described in the proxy statement accompanying this notice:
 
1. to elect sixfour directors to serve until the next annual meeting of stockholders;
 
2. to amend the 2002 Stock Incentive Plan to extend the term of the Plan to May 23, 2016 and to increase the shares of our common stock reserved for issuance thereunder by 1,000,000 shares;
3. to ratify the appointment of BDO Seidman,USA, LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2010;2011; and
 
3.4. to consider and act upon such other business as may properly come before the meeting, or any adjournment or postponement thereof.
 
Stockholders of record at the close of business on March 17, 201015, 2011 are entitled to notice of and to vote at our annual meeting and any adjournment or postponement thereof. All stockholders are cordially invited to attend the meeting in person.
 
Whether or not you plan to attend,please sign and return the enclosed proxy as promptly as possible in the envelope enclosed for your convenience, or please vote via the Internet or by telephone. Should you receive more than one proxy because your shares are registered in different names and addresses, each proxy should be signed and returned to assure that all of your shares will be voted. You may revoke your proxy at any time prior to our annual meeting. If you are a stockholder of record and vote by ballot at our annual meeting, your proxy will be revoked automatically and only your vote at our annual meeting will be counted.
 
We are providing or making available to you the Proxy Statement for our 20102011 Annual Meeting of Shareholders and our 20092010 Annual Report onForm 10-K. You may also access these materials via the Internet at www.biolase.com.
 
BY ORDER OF THE BOARD OF DIRECTORS
Sincerely,
 
-s- George V. d'Arbeloff
George V. d’ArbeloffFederico Pignatelli
Chairman of the Board and Chief Executive Officer
 
Irvine, California
April 2, 20101, 2011

 


TABLE OF CONTENTS
 
     
  Page
 
SOLICITATION OF PROXIES
  1 
ELECTION OF DIRECTORS
  43
EXECUTIVE COMPENSATION
12
COMPENSATION COMMITTEE REPORT
22
AMENDMENT TO 2002 STOCK INCENTIVE OPTION PLAN
23 
RATIFICATION OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
  1327 
PRINCIPAL ACCOUNTANT FEES AND SERVICES
  13
OTHER MATTERS
14
EXECUTIVE COMPENSATION
15
COMPENSATION COMMITTEE REPORT
3028 
AUDIT COMMITTEE REPORT
  3129 
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
  3229 
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
  31
OTHER MATTERS
32 

BIOLASE TECHNOLOGY, INC.
4 Cromwell
Irvine, California 92618
 
ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON MAY 5, 20102011
 
PROXY STATEMENT
 
SOLICITATION OF PROXIES
 
General
 
The accompanying proxy is solicited on behalf of the Board of Directors (the “Board”) of BIOLASE Technology, Inc., a Delaware corporation (“BIOLASE,” “the Company,” “we,” “our,” or “us”), for use at our annual meeting of stockholders to be held on Wednesday,Thursday, May 5, 20102011 and at any adjournment or postponement thereof. Our annual meeting will be held at 9:11:00 a.m. local time at our corporate headquarters located at 4 Cromwell, Irvine, CA,California, 92618. These proxy solicitation materials were mailed on or about April 2, 20101, 2011 to all stockholders entitled to vote at our annual meeting.
 
If the enclosed form of proxy is properly signed and returned to us, the shares represented thereby will be voted at our annual meeting in accordance with the instructions specified thereon. If the proxy of a stockholder of record does not specify how the shares represented thereby are to be voted, the proxy will be voted FOR:
 
 • the election of the sixfour nominees for election to our Board listed in the proxy and proposed by our Board;
• the amendment of the 2002 Stock Incentive Plan to extend the term of the Plan to May 23, 2016 and to increase the shares of our common stock reserved for issuance thereunder by 1,000,000 shares; and
 
 • the ratification of the appointment of BDO Seidman,USA, LLP, as our independent registered public accounting firm for the fiscal year ending December 31, 2010.2011.
 
Any stockholder has the power to revoke his or her proxy at any time before it is voted. A proxy may be revoked by a stockholder of record by:
 
 • delivering a written notice of revocation to our Corporate Secretary before our annual meeting;
 
 • presenting (before our annual meeting) a new proxy with a later-date; or
 
 • attending our annual meeting and voting in person.
 
Attendance at our annual meeting will not, by itself, revoke a proxy. If your shares are held in the name of a bank, broker or other nominee, you may change your vote by submitting new voting instructions to your bank, broker or other nominee. Please note that if your shares are held of record by a broker, bank or other nominee, and you decide to attend and vote at our annual meeting, your vote in person at our annual meeting will not be effective unless you present a legal proxy, issued in your name from the record holder, your broker.
 
Voting; Quorum
 
On March 17, 2010,15, 2011, the record date for determination of stockholders entitled to notice of and to vote at our annual meeting, 24,385,90327,479,743 shares of our common stock, par value $0.001 per share, were outstanding. No shares of our preferred stock were outstanding on such record date. Only stockholders of record of our common stock on March 17, 201015, 2011 will be entitled to notice of and to vote at our annual meeting or any adjournment or postponement thereof. Each stockholder is entitled to one vote for each share of our common stock held by such stockholder on such record date. Stockholders may not cumulate votes in the election of directors.

The presence at our annual meeting, either in person or by proxy, of holders of shares of our outstanding common stock entitled to vote and representing a majority of the voting power of all of such shares shall constitute a quorum for the transaction of business.
 
Our Bylaws provide for a majority voting standard for the election of directors in uncontested elections. Under this majority voting standard, in uncontested elections of directors, such as this election, each director must be elected by a majority of the votes cast by the shares present in person or represented by proxy and entitled to vote. A “majority

“majority of the votes cast” means that the number of votes cast “for” a director nominee must exceed the number of votes cast “against” that nominee. If a director is not elected by a majority of the votes cast in an uncontested election, our Nominating and Corporate Governance Committee shall accept any previously tendered resignation by such director absent a compelling reason (as determined consistent with our Board’s fiduciary duties) for such director to remain on our Board. Our Board’s policy is not to nominate a director for election unless the director has tendered in advance an irrevocable resignation effective in such circumstances where the director does not receive a majority of the votes cast in an uncontested election. The Committee shall act on any such resignation offer and publicly disclose its decision within 90 days from the date of the certification of the election results.
 
With regard to the appointment of BDO Seidman, LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2010,other proposals, the affirmative vote of the holders of our common stock representing a majority of the voting power present or represented by proxy and entitled to vote on the subject matter is required for approval.
 
Abstentions may be specified on all proposals and will be counted as present for purposes of determining the existence of a quorum regarding the item on which the abstention is noted. Abstentions willfrom any vote and broker non-votes may have the effect of preventing approval of a proposal where the number of “for” votes, although a majority of the votes cast, does not have any effect onconstitute a majority of the electionrequired quorum.
If a shareholder of directors. Forrecord signs and returns a valid proxy but does not provide instructions as to how shares should be voted, then all the appointment of BDO Seidman, LLP, abstentionsshares represented by such proxy will be counted as a vote against such proposal for purposes of determining whether stockholder approvalvoted in accordance with the recommendations of the proposal has been obtained. Shares that areBoard of Directors on all the proposals described in this Proxy Statement. If a shareholder is a beneficial owner (i.e.,a shareholder who holds shares in street name via a broker or bank) and does not voted bygive a proxy to the broker who is the record holder of the shares because the broker is not instructedor bank with instructions as to how to vote such shares, bythen the beneficial ownerbroker or bank who is the shareholder of record generally has discretionary authority to vote those shares only in “routine” matters, such as the proposal to ratify our auditors. However, banks and doesbrokers do not have discretionary authority to vote on their clients’ behalf on “non-routine” proposals such as the election of our directors and the amendment to our 2002 Stock Incentive Plan. Therefore, such brokers and banks are not able to vote on a shareholder’s behalf in any director election or on the proposal to amend the 2002 Stock Incentive Plan without specific voting instructions from the shareholder. If a shareholder who is a beneficial owner does not give a proxy to the shareholder’s broker or bank with instructions as to how to vote such shares (i.e.,on these “non-routine” proposals, the shares will be considered “broker non-votes”) and shares that are not voted in other circumstances in which proxy authority is defective or has been withheld, will be counted as present for purposes of establishing a quorum.quorum but may have the same effect as a vote “against” these “non-routine” proposals.
 
The persons named as attorneys-in-fact in the form of the accompanying proxy, Federico Pignatelli and David M. Mulder,Frederick D. Furry, were selected by our Board and are our officers. All properly executed proxies returned in time to be counted at our annual meeting will be voted by such persons at our annual meeting. If you provide specific instructions with regard to certain items, your shares will be voted as you instruct on such items. If you sign your proxy card or voting instruction card without giving specific instructions, your shares will be voted in accordance with the recommendations of the Board. Aside from the election of the named directors, the amendment to our 2002 Stock Incentive Plan, and the ratification of the appointment of BDO Seidman,USA, LLP as our independent registered public accounting firm, our Board knows of no other matter to be presented at our annual meeting. If any other matters should be presented at our annual meeting upon which a vote properly may be taken, shares represented by all proxies received by us will be voted with respect thereto as permitted and in accordance with the judgment of the persons named as attorneys-in-fact in the proxies.
 
Solicitation
 
We will bear the entire cost of solicitation, including the preparation, assembly, printing and mailing of this proxy statement, the proxy and any additional solicitation materials furnished to our stockholders. Copies of solicitation materials will be furnished to brokerage houses, fiduciaries and custodians holding shares in their names that are beneficially owned by others so that they may forward this solicitation material to such beneficial owners. In addition, we may reimburse such persons for their costs in forwarding the solicitation materials to such beneficial owners. The original solicitation of proxies by mail may be supplemented by a solicitation by telephone, facsimile or other means by our directors, officers or employees. No additional compensation will be paid to these individuals for any such services. Except as described above, we do not presently intend to solicit proxies other than by mail. In accordance with Delaware law, a list of stockholders entitled to vote at our annual meeting will be available at our annual meeting, and for 10 days prior to our


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annual meeting, at BIOLASE Technology, Inc., 4 Cromwell, Irvine, California 92618 between the hours of 8:00 a.m. and 5:00 p.m. Pacific Time.
Stockholder Proposals for 2011 Annual Meeting
It is currently contemplated that our 2011 annual meeting of stockholders will be held on or about May 5, 2011. In the event that a stockholder desires to have a proposal considered for presentation at the 2011 annual meeting of stockholders, and inclusion in the proxy statement and form of proxy used in connection with such meeting, the proposal must be received at our principal executive offices by December 3, 2010. Any such proposal must comply with the requirements of our bylaws andRule 14a-8 promulgated under the Securities Exchange Act of 1934, as amended.
If a stockholder, rather than including a proposal in our proxy statement as discussed above, commences his or her own proxy solicitation for the 2011 annual meeting of stockholders or seeks to nominate a candidate for election or propose business for consideration at such meeting, we must receive notice of such proposal or nomination between January 5, 2011 and February 4, 2011. If the notice is not received by such date, it will be considered untimely, and we will have discretionary voting authority under proxies solicited for the 2011 annual meeting of stockholders with respect to such proposal, if presented at the meeting. All notices must comply with the requirements of our bylaws.
Proposals and notices should be directed to the attention of the Corporate Secretary, BIOLASE Technology, Inc., 4 Cromwell, Irvine, California 92618.


32

 
MATTERS TO BE CONSIDERED AT THE ANNUAL MEETING
 
PROPOSAL ONE
 
ELECTION OF DIRECTORS
 
General
 
Our Board of Directors currently consists of eightfour directors whose term of office expires at our annual meeting. Two of our directors, Messrs. Neil J. Laird and Daniel S. Durrie, are not standing for reelection at our annual meeting.
 
On March 5, 2009,July 17, 2010, Mr. Jake P. St. Philip,George V. D’Arbeloff and Dr. Robert M. Anderton, DDS, resigned from their roles as a Director. On August 22, 2010 and August 26, 2010, Messrs. Gregory D. Waller and James R. Largent resigned, respectively, from their roles as a Director. On August 24, 2010, David M. Mulder, our Chief Executive Officer since January 2, 2008March 5, 2009, and a Directorour President and Chairman of the Board since January 7, 2008,June 10, 2010, resigned from his roles as Chief Executive Officer, President, and Director.Chairman of the Board.
On July 17, 2010, Dr. Alex K. Arrow and Dr. Norman J. Nemoy were appointed as Directors of the Company. On November 1, 2010, Mr. Gregory E. Lichtwardt was appointed as a Director of the Company.
 
Our Board, upon the recommendation of the Nomination and Corporate Governance Committee, appointed Mr. David M. Mulder,Federico Pignatelli as our newinterim Chief Executive Officer and Executive Chairman on August 27, 2010. On September 30, 2010, Mr. Pignatelli was appointed as a Directorour Chairman of the Company on March 4, 2009, to be effective on March 5, 2009.Board and Chief Executive Officer of the Company. Prior to his appointment as Chief Executive Officer, Mr. MulderPignatelli was our Chief Financial Officer.
On October 21, 2009, Mr. Gregory D. Waller, a veteran in the dental industry, was appointed as a DirectorPresident and Chairman Emeritus of the Company.Board.
 
The authorized number of directors on the Board is currently fixed at not less than three and not more than nine.
 
The sixfour nominees to be elected at our annual meeting will serve until the 20112012 annual meeting of stockholders and until their successors have been duly elected and qualified or until their earlier resignation, removal, or death. All of our sixfour nominees currently serve on our Board. Each of the director nominees has agreed to serve if elected. We have no reason to believe that any of the nominees will be unavailable to serve. Although it is anticipated that each nominee will be able to serve as a director, should any nominee become unavailable to serve, the proxies will be voted for such other person or persons as may be designated by our Board.
 
Our Board, upon recommendation from its Nominating and Corporate Governance Committee, has nominated the persons listed below for re-election to serve as directors for the term beginning at our annual meeting of stockholders on May 5, 2010.2011. Unless otherwise instructed, the proxy holders will vote the proxies received by them FOR the sixfour nominees named below.
 
Our Nominees/Directors
 
The following table sets forth certain information as of March 17, 201015, 2011 regarding our directors, all of whom, are nominees for re-election, except for Mr. Waller, who isPignatelli, are nominees standing for election by stockholders for the first time:
 
       
Name
 
Age
 
Position
 
George V. d’Arbeloff(1)(2)(3)Federico Pignatelli  6558  Director, Chairman of the Board, and Chief Executive Officer
Robert M. Anderton, DDS(1)Dr. Alex K. Arrow(1)(2)(3)(4)  7340  Director
James R. Largent(3)Mr. Gregory E. Lichtwardt(1)(2)(3)(4)  6056  Director
Federico PignatelliDr. Norman J. Nemoy(1)(2)(3)(4)  57Director, Chairman Emeritus and President
David M. Mulder48Director and Chief Executive Officer
Gregory D. Waller(1)(2)6071  Director
 
 
(1)Member of Audit Committee
 
(2)Member of Nominating and Corporate Governance Committee


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(3)Member of Compensation Committee
 
(4)Member of Quality and Compliance Committee


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George V. d’Arbeloff,Federico Pignatelli,65,58, has served as a directorour Chief Executive Officer since 1996,August 2010, and as our lead independent director from March 2006 through May 2006, and as Chairman of the Board since May 2006. Since February 2008, Mr. d’Arbeloff has served as a Managing Member of Disruptive Capital Partners, LLC, the managing entity of DCP Premiere Fund, a hedge fund investing in long/short positions inU.S.-based equities. Since 2003, Mr. d’Arbeloff has served as Managing Member of Opus Venture Group, LLC, a company dedicated to providing innovative products for various retail outlet channels. Since 2000, Mr. d’Arbeloff has served as Chairman of the Board of Big Idea Group, Inc., a company that links inventors with companies outsourcing innovation. From 1996 to 2000, Mr. d’Arbeloff served asand Chief Executive Officer of Retail Solutions, Inc., a small early-stage private company which sought protection under Chapter 7 of the U.S. Bankruptcy Code in June 2000. From 1967 to 1996, he served in various executive capacities at Teradyne, Inc., a manufacturer of testing equipment for the semiconductor and electronics industries, including Vice President of Investor Relations from 1995 to 1996, Vice President and General Manager of the Semiconductor Test Group from 1992 to 1995 and Vice President and General Manager of the Industrial/Consumer Division of the Semiconductor Test Group from 1982 to 1992.
Robert M. Anderton, DDS,73, hassince September 2010. Mr. Pignatelli previously served as a director since May 2004. From 1999 to 2001, Dr. Anderton served as the President of the American Dental Association (ADA) and has held many leading official roles with the ADA, including Trustee, Liaison to the Commissions on Dental Accreditation, Council on Education, Government and Legislative Affairs. Dr. Anderton has practiced general dentistry since 1961 and has held several dental society positions, including past President of the Texas Dental Association and Dallas County Dental Society. At various times, Dr. Anderton has published a number of articles in medical and trade journals, including the Journal of the American Society of Preventive Dentistry and Journal of Modern Dental Practice. Dr. Anderton received a DDS degree from Baylor University College of Dentistry and a J.D. degree from Southern Methodist University School of Law.
James R. Largent, 60, has served as a director since June 2007. Mr. Largent has 30 years of management experience in the medical device and pharmaceutical industries, including 28 years with Allergan, Inc. where he held various senior management positions, including Vice President, Strategic Planning. From 2002 to the present, Mr. Largent has been a consultant to companies in the medical device industry and has helped them build shareholder value by focusing on strategic planning, marketing, reimbursement strategies, and business development. In addition to serving on our Board, Mr. Largent also serves on the Board of Tear Science, Inc., a privately held developer of diagnostic and therapeutic devices for the treatment of patients with dry eye disease. Mr. Largent holds a B.S. in Chemistry and an M.B.A. from The University of California, Irvine.
Federico Pignatelli,57, served as Chairman of our Board from 1994 until March 2006, at which point he resigned as Chairman of our Board and became our Chairman Emeritus. Mr. Pignatelli has served as our President sincefrom January 2008.2008 until June 2010. From November 2007 to January 2008, Mr. Pignatellihe served as interim Chief Executive Officer. HeMr. Pignatelli has served as a director since 1991. He is the Founder,founder, and has served as President, of Art & Fashion Group since 1992. Art & Fashion Group is a holding company of an array of businesses providing services to the advertising industry, including the world’s largest complex of digital and film still photography studios for production and post-production. Previously, Mr. Pignatelli was a Managing Director at Gruntal & Company, an investment banking and brokerage firm, and was a Managing Director of Ladenburg, Thalmann & Co., another investment banking and brokerage firm.
 
David M. MulderAlex K. Arrow,M.D., 48,CFA, 40, was appointed to the Board in July 2010. Dr. Arrow has served as a director and our Chief Executive Officer since March 5, 2009. Prior to joining us as our Chief Financial Officer in April 2008, Mr. Mulder wasbeen the Chief Financial Officer andof Redwood City, California-based Arstasis, Inc., a 115-employee cardiology device manufacturer, since 2007. From 2002 to 2007, Dr. Arrow headed medical technology equity research at the global investment bank Lazard, providing research coverage on a wide variety of medical device manufacturers. Dr. Arrow also spent two years as Chief OperatingFinancial Officer of American LaFrance, a private equity owned turn-around company focused on manufacturing emergency vehicles, from January 2006 until August 2007. In January 2008, American LaFrance sought protection under Chapter 11 of the U.S. Bankruptcy Code,Patent & License Exchange, later renamed PLX Systems, Inc., and emerged from bankruptcy four months later with approximately 90% of its creditors supporting its plan of reorganization. From 2002 through 2005, he servedthree years as the Executive Vice President, Chief Administrative Officer, and Senior Financial


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Officer of Salton, Inc.,publishing life sciences research analyst at Wedbush Morgan Securities. In 1996, Dr. Arrow was a marketer and distributor of household appliances, healthcare products and other consumer products, whichsurgical resident at the timeUCLA Medical Center. Dr. Arrow received his CFA in 1999. He was awarded an M.D. from Harvard Medical School in 1996 and a New York Stock Exchange-listed company with global revenues of $1.1 billion. Mr. Mulder spent six years with Fruit of the Loom,B.A. in progressive general management, strategic, financial, and operational roles, culminating as the head of the European businessBiophysics,magna cum laude, from Cornell University in 2000. Mr. Mulder began his professional career in accounting and consulting roles with Arthur Anderson, and holds an M.B.A. from Duke University, Fuqua School of Business.1992.
 
Gregory D. WallerE. Lichtwardt,, 60, has served on our56, was appointed to the Board of Directors since October 2009.in November 2010. Mr. Waller has beenLichtwardt is Executive Vice President, Operations, Treasurer, and Chief Financial Officer of Universal Building Products,Conceptus, Inc. (NASDAQ:CPTS), developer of the Essure® procedure, a non-surgical permanent birth control procedure. He joined Conceptus in November 2003 as Executive Vice President, Treasurer and Chief Financial Officer and was promoted to his current position in April 2008. From 2000 to 2002, he was Executive Vice President, Finance, Chief Financial Officer and Corporate Secretary of Innoventry, Inc., a manufacturer of concrete construction accessories since March 2006. Previously,financial services company. From 1993 to 2000, Mr. Waller served asLichtwardt was Vice President-Finance,President, Finance, Chief Financial Officer and Treasurer of Sybron Dental Specialties,Ocular Sciences, Inc., a manufacturerworldwide developer and marketer of consumable dental products,soft contact lenses. Prior to his employment with Ocular Sciences, Mr. Lichtwardt, from August 1993 until May 2005 and was formerly the Vice President and Treasurer of Kerr Corporation, Ormco Corporation, and Metrex Research Corporation. Mr. Waller joined Ormco Corporation in December 1980 as Vice President and Controller and served as Vice President of Kerr Corporation European Operations from July 1989 to August 1993.1993, held senior management positions in various divisions of Allergan Inc. In addition to these positions, Mr. WallerLichtwardt has anheld various financial positions at AST Research, Inc. and at divisions of American Hospital Supply Corporation. He holds a B.B.A. degree from the University of Michigan and M.B.A. withdegree from Michigan State University.
Norman J. Nemoy,M.D., F.A.C.S., 71, was appointed to the Board in July 2010. Dr. Nemoy is a concentration in Accounting from California State University, Fullerton. Mr. Waller also servespartner at Tower Urology Medical Group and is on the boardsurgical attending staff at Cedars-Sinai Medical Center. Dr. Nemoy graduated from the University of directorsIllinois, School of Medicine, and as chairmanobtained his urological training at Stanford University Medical Center in Palo Alto, California. Following his training at Stanford, he had served on the clinical faculty at UCLA School of Medicine. He is a fellow of the audit committeeAmerican College of eachSurgeons, and is Board Certified by the American Board of Clarient, Inc., Endologix, Inc., Cardiogenesis Corporation,Urology. Dr. Nemoy is an expert in advanced robotic surgery and SenoRx, Inc., allhas been involved in numerous clinical research studies designed to test the safety and clinical effectiveness of which are publicly traded companies.new urological drugs and devices.
 
Recommendation of ourOur Board
 
THE BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE “FOR” THE ELECTION OF EACH NOMINEE NAMED ABOVE.


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Corporate Governance
 
Board Role in Risk Oversight
 
Our Board takes an enterprise-wide approach to risk management that seeks to complement our organizational objectives, strategic objectives, long-term organizational performance and the overall enhancement of shareholder value. Our Board assesses the risks we face on an ongoing basis, including risks that are associated with our financial position, our competitive position, the impact of our operations on our cost structure, our historical reliance on a small number of distributors, and our reliance on single source suppliers for some of our components. Our Board, at each of its meetings, considers these and other risks that we face from time to time. Our Board’s approach to risk management includes developing a detailed understanding of the risks we face, analyzing them with the latest information available, and determining the steps that should be taken to manage those risks, with a view toward the appropriate level of risk for a company of our size and financial condition.
 
Certain committees of the Board actively manage risk within their given purview and authority. Our Audit Committee, for example, reviews our disclosure controls and our internal controls over financial reporting on a quarterly basis, including our overall risk assessment and our processes and procedures for assessing risks. In addition, our Compensation Committee, in setting performance metrics, creates incentives for our senior executives that encourage an appropriate level of risk-taking that is commensurate with our Company’s short-term and long-term strategies and their attendant risks. Finally, our Quality and Compliance Committee reviews and assists with management’s proper compliance with operational, safety, and regulatory requirements, which by their nature help to minimize risks that relate to our operations, the safety of our employees, and the end-users of our products and their patients.
 
Board Composition and Qualifications
 
Each director nominee brings a strong and unique set of skills and background to our Board, and gives our Board as a whole substantial experience and competence in a wide variety of areas, including board of directors service, executive management, medical device, capital equipment, specialty healthcare, consumer products, sales and marketing, international operations, public accounting, corporate finance, risk assessment,


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and manufacturing. Mr. d’Arbeloff has extensive experience in managerial and investor relations roles in the capital equipment field, having spent 29 years at Teradyne, Inc., a large manufacturer of testing equipment. Mr. Mulder, who was appointed in March 2009 as our Chief Executive Officer after serving as our Chief Financial Officer, brings to our Board a wealth of experience in general management, strategic planning, deal negotiations, large operations management, corporate finance and accounting, and new product development efforts, including at Salton, Inc., a large consumer product manufacturer and marketer, and at Fruit of the Loom, where he led that company’s European Operations. Mr. Pignatelli, who has broad experience in successful business ventures and has a professional background in investment banking, has been with us since 1991 and brings to our Board his years of experience and history with our operations, and the types of issues we face on a recurring basis. Dr. Arrow, through his executive experience with a commercial stage medical device manufacturer, knowledge of the medical technology industry gained in investment banking, and a medical educational background, brings a depth of knowledge of our industry. Mr. Largent, who previously servedLichtwardt, as a public company chief financial officer in high-level positions at Allergan Inc., a large multi-specialty healthcare company, including the role of Vice President of Strategic Planning, has wide-ranging experience within the medical device industry and ophthalmology fieldprior history as a chief financial officer in the areas of marketing and sales management, strategic planning, and business development. Mr. Waller, through his service on other public company boards of directors and their audit committees, in the medical device and healthcare fields, and as the former Chief Financial Officer of Sybron Dental Specialties, Inc., a large dental company,industries including eye care, has valuable experience dealing with finance and accounting principles, financial reporting rules and regulations, and evaluating financial results,results. Dr. Nemoy, an expert in advanced robotic surgery and specific experiencea frequent participant in clinical studies who is on the attending staff of one of the most preeminent hospitals in the dental products industry. Dr. Robert Anderton, a former President of the American Dental Association and a practicing dentist since 1961,nation, brings to our Board unparalleled experience in dentistry, as well as his historical perspective on the industrymedical expertise and his views on emerging trendsperspective as a user of high technology in the field.practice of medicine.
 
Board Leadership Structure
 
We separateThe positions of our principal executive officer and the roleschairman of Chief Executive Officerour board of directors are served by one individual, Mr. Federico Pignatelli. Our Board provides oversight of our risk exposure by receiving periodic reports from management regarding matters relating to financial, operational, legal, and Chairmanstrategic risks and mitigation strategies for such risks, currently provided to the Board on a monthly basis. As Mr. Pignatelli is an officer of the Company, he does not serve on the Audit, Compensation, Nominating and Corporate Governance, or Quality and Compliance Committees of the Board. The Board believes that the existing leadership structure of the Board in recognition ofand its Committees is appropriate based on the differences between the two roles. The Chief Executive Officer is responsible for setting the Company’s strategic direction, providing leadership, and driving the performance of the Company, while the Chairmansize of the Board provides guidance toand the Chief Executive Officer, sets the agenda for Board meetings, and presides over meetings of the full Board. We believe that our leadership structure is appropriate because it strikes an effective and essential balance between management and non-employee director participation in our Board process.Company’s current circumstances.


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Director Independence
 
Our Board has determined that each of Messrs. d’Arbeloff, Laird, Largent, Anderton, Durrie,Arrow, Nemoy, and WallerLichtwardt are independent directors as defined by the listing standards of the NASDAQ Marketplace Rules (“NASDAQ Rules”) and the rules and regulations of the U.S. Securities and Exchange Commission (“SEC”). The Committees of the Board currently and throughout 20092010 have been comprised solely of independent directors and otherwise meet the applicable qualification requirements of NASDAQ and the SEC. In making its independence determinations, the Board considered the following relationship:
Dr. Durrie is the sole proprietor of DurrieVision, PA, an eye care medical center in Overland Park, Kansas. For the express purpose of evaluating BIOLASE’s laser technology in ophthalmic surgical applications, we have loaned certain laser equipment to DurrieVision since March 2007. DurrieVision has not paid any amounts to us for the temporary use of this equipment.
Mr. Pignatelli was determined to not be independent based on his service beginning in November 2007 as our interim Chief Executive Officer and based on his service, since January 2008, as our President.
Mr. Mulder was determined to not be independent based on his service, since March 2009,President, and currently as our Chief Executive Officer, and prior to that time, as our Chief Financial Officer.
 
Board Committees and Meetings
 
Our Board held 2824 regularly scheduled and special meetings and acted by unanimous written consent threeeight times during the year ended December 31, 2009.2010. Each director then in office attended at least 75% of the aggregate of (i) the total number of meetings of our Board and (ii) the total number of meetings held by


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all committees of our Board on which such director served during 2009.2010. Although we have no policy with regard to boardBoard members’ attendance at our annual meeting of stockholders, it is customary for, and we encourage, all boardBoard members to attend our annual meeting, and we permit attendance by telephone or video conference, if necessary, to mitigate conflicts. All of our Board members standing for reelection attended our 20092010 annual meeting of stockholders, except for Mr. Pignatelli, and for Mr. Waller, who was appointed to the Board after the date of the 2009 annual meeting.stockholders.
 
Our Board has established four standing committees: the Audit Committee, the Compensation Committee, the Nominating and Corporate Governance Committee, and the Quality and Compliance Committee. Each committee operates pursuant to a written charter that has been approved by our Board. A copy of the current charter for each of the Audit Committee, the Compensation Committee, the Nominating and Corporate Governance Committee and the Quality and Compliance Committee is available on our website atwww.biolase.com. www.biolase.com.
 
Audit Committee.  The Audit Committee currently consists of Messrs. Laird, d’Arberloff, Anderton,Drs. Arrow and Waller,Nemoy, and Mr. LairdLichtwardt, and Dr. Arrow serves as its chairman. Our Board has determined that Mr. LairdDr. Arrow qualifies as the “audit committee financial expert” under the SEC rules and meets the financial sophistication requirements of the NASDAQ rules. As Mr. Laird is not running for reelection at our annual meeting, our Board has determined that, as of the date of this Proxy Statement, Mr. Waller would meet the qualifications of “audit committee financial expert” under the SEC rules and would also meet the financial sophistication requirements of the NASDAQ rules, and, if Mr. Waller is elected at our annual meeting, he has agreed to be deemed our financial expert and to serve as the chairman of our Audit Committee.
 
The primary responsibilities of the Audit Committee include, but are not limited to: (i) the appointment, compensation and oversight of the work of our independent auditor; (ii) reviewing the reports of the independent auditors regarding our accounting practices and systems of internal accounting controls;controls, as applicable; (iii) reviewing our financial reports, our accounting and financial policies in general, and management’s procedures and policies with respect to our internal accounting controls; and (iv) reviewing the independence qualifications and quality controls of the independent auditor. The Audit Committee held sixten meetings during 2009.2010.
 
Compensation Committee.  The Compensation Committee currently consists of Messrs. Largent, d’Arbeloff, Laird, Durrie,Drs. Arrow and Anderton,Nemoy, and Mr. Largent servicesLichtwardt, and Dr. Arrow serves as its chairman. Each of the current members of the Compensation Committee qualifies as a “non-employee” director under SEC rules and regulations, and as an “outside” director under the Internal Revenue Code.
 
The Compensation Committee’s primary responsibilities include, but are not limited to: (i) reviewing and developing our general compensation policies; (ii) reviewing and approving the compensation of our Chief Executive Officer and other executive officers, including salary, bonus, long-term incentive and equity compensation, and any other perquisites or special benefits; (iii) making awards under and acting as administrator of our equity incentive plans; (iv) overseeing administration of our other employee benefit plans; (v) making recommendations to our Board regarding director compensation; and (vi) producing an annual report on executive compensation for inclusion in our annual proxy statement. The charter for the Compensation Committee requires it to meet at least twice annually. The Compensation Committee held seventhree meetings during 2009 and acted by unanimous written consent two times.2010.
 
For compensation decisions relating to our executive officers other than our Chief Executive Officer, our Compensation Committee also considers the recommendations of our Chief Executive Officer, based on his assessment of each executive officer’s position and responsibilities, experience and tenure, his observations of the executive officer’s performance during the year and his review of competitive pay practices. Our Chief Executive Officer does not have a role in determining or recommending director compensation. Our Chief Executive Officer


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regularly attends Compensation Committee meetings, but abstains from portions of meetings at the request of other members of the Compensation Committee to enable it to freely consider issues related to the compensation of our Chief Executive Officer. The Compensation Committee has the sole authority to retain consultants and advisors as it may deem appropriate in its discretion, and the Compensation Committee has the sole authority to approve related fees and other retention terms. In May 2006, our Compensation


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Committee engaged Aon Consulting (“Aon”) as our compensation consultants. In May 2007, Aon, through its business unit, Radford Surveys and Consulting (“Radford”), provided our management and Compensation Committee with an assessment of the total direct compensation levels for the top three senior management positions of the Company relative to survey and proxy data. The Compensation Committee also directed Radford to recommend how to best structure our compensation plans to provide a competitive compensation opportunity that aligns the interests of senior management, the Company, and our stockholders.
 
In 2008, the Compensation Committee engaged Radford to provide an assessment of our director compensation relative to survey and other relevant peer data, and recommended certain changes to director compensation which were accepted by the Board, as set forth in footnote 1 below under the caption “Director Compensation Table.”
Secondary Stock Option Committee.  The Secondary Stock Option Committee currently consists of our Chief Executive Officer and our Chief Financial Officer. In September 2003 and as further modified in May 2006, and May 2009 and March 2011, our Board granted our Chief Executive Officer and Chief Financial Officer joint authority to make discretionary option grants to new employees, other than executive officers and Board members, subject to a limitation of 5,000 shares (12,000 shares effective March 2011), per individual employee grant and compliance with the express terms and conditions of our 2002 Stock Incentive Plan. Grants to employees that exceed 5,000 optionsshares (12,000 shares effective March 2011) are first reviewed with the Board or the Compensation Committee. The Chief Executive Officer must review these grants at least semiannually with the Compensation Committee. In addition, all such options must have an exercise price not less than the closing sale price of our common stock on the date of grant. Messrs. Mulder and Brett L. Scott, our Chief Financial Officer since July 14, 2009,The Secondary Stock Option Committee granted options to purchase an aggregate of 18,00045,000 shares of our common stock in 2009.2010.
 
Nominating and Corporate Governance Committee.  The Nominating and Corporate Governance Committee currently consists of Messrs. d’Arbeloff, Durrie,Drs. Arrow and Waller,Nemoy, and Mr. d’ArbeloffLichtwardt, and Dr. Nemoy serves as its chairman.
 
The Nominating and Corporate Governance Committee is responsible for, among other things: (i) identifying individuals who are qualified to be members of our Board and selecting or recommending that our Board select the nominees for directorships; (ii) to the extent deemed appropriate by the committee, developing and recommending to our Board a set of corporate governance principles applicable to us; (iii) establishing the criteria and procedures for selecting new directors; (iv) overseeing the process for evaluating our Board and management; and (v) reviewing and reassessing, at least annually, the adequacy of the Nominating and Corporate Governance Committee, including the compliance of the committee with its charter. The Nominating and Corporate Governance Committee held threefive meetings during 2009.2010.
 
The Nominating and Corporate Governance Committee considers candidates for membership to our Board suggested by its members and our other Board members, as well as by our management and stockholders. The Nominating and Corporate Governance Committee may also retain a third-party executive search firm to identify candidates. All recommendations submitted by stockholders should be submitted to the Nominating and Corporate Governance Committee to the attention of the Corporate Secretary. The stockholder must submit a detailed resume of the candidate and an explanation of the reasons why the stockholder believes this candidate is qualified for service on our Board. The stockholder must also provide such other information about the candidate that would be required by the SEC rules to be included in a proxy statement. In addition, the stockholder must include the consent of the candidate and describe any relationships, arrangements or undertakings between the stockholder and the candidate regarding the nomination or otherwise. The stockholder must also submit proof of stockholdings in the Company. All communications are to be directed to the Chairperson of the Nominating and Corporate Governance Committee, to the attention of the Corporate Secretary, Biolase Technology, Inc., 4 Cromwell, Irvine, California 92618.
 
The Nominating and Corporate Governance Committee focuses on the following criteria in determining whether a candidate is qualified to serve on our Board: (i) roles and contributions valuable to the business community; (ii) personal qualities of leadership, character and judgment, and whether the candidate possesses and maintains a reputation in the community at large of integrity, trust, respect, competence and adherence to high ethical standards; (iii) relevant knowledge and diversity of the candidate’s background and experience in areas such as business, finance and accounting, marketing, international business and other similar areas;


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(iv) whether the candidate has the time required for preparation, participation and attendance at meetings; and (v) requirements relating to Board and Board committee composition under applicable law and NASDAQ Rules. The Nominating and Corporate Governance Committee, and our Board, may also consider the overall diversity of our Board when making a determination on qualification for service on our Board, to ensure that the Board is able to represent the best interests of all of our stockholders, and to encourage innovative solutions and viewpoints by considering


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background, education, experience, business specialization, technical skills, as well as other factors of a particular candidate, as compared to composition of our Board at a given time. The Nominating and Corporate Governance Committee applies the same criteria to nominees recommended by stockholders as to new candidates recommended by the Nominating and Corporate Governance Committee.
 
The Nominating and Corporate Governance Committee reviews each existing director whose term is set to expire and considers the following in determining whether to recommend the re-election of that director: (i) occupation or business association changes; and (ii) whether circumstances have arisen that may raise questions about a director’s continuing qualifications in relation to our Board’s membership criteria.
 
Quality and Compliance Committee.  The Quality and Compliance Committee currently consists of Drs. AndertonArrow and Durrie,Nemoy, Mr. Lichtwardt, and Mr. Largent. Dr. AndertonLichtwardt serves as its chairman.
 
The primary responsibilities of the Quality and Compliance Committee include, but are not limited to: (i) assisting the Board in carrying out its oversight responsibility with respect to quality and compliance issues; (ii) overseeing management’s efforts to adopt and implement policies and procedures that require the Company and its employees to deliver high quality services in compliance with high ethical and legal standards; and (iii) ensuring compliance with operational, health, safety, and regulatory requirements and best practices. The Quality and Compliance Committee held two meetings during 2009.2010.
 
Stockholder Communications
 
Any stockholder who wishes to communicate with our Board may send his or her communication in writing to: Corporate Secretary, BIOLASE Technology, Inc., 4 Cromwell, Irvine, California 92618. The communication must include the stockholder’s name, address and an indication that the person is our stockholder. The Corporate Secretary will review any communications received from stockholders, and all material communications from stockholders will be forwarded to the appropriate director or directors, or committee of our Board, based on the subject matter.
 
Section 16(a) Beneficial Ownership Reporting Compliance
The members of our Board, the executive officers and beneficial holders of more than ten percent of the outstanding shares of our common stock are subject to the reporting requirements of Section 16(a) of the Securities Exchange Act of 1934 which requires them to file reports with respect to their ownership of our securities. Based solely upon the copies of Section 16(a) reports which we received from such persons for their 2010 fiscal year transactions in our common stock and their common stock holdings, we believe that all reporting requirements under Section 16(a) for such fiscal year were met in a timely manner by our directors, executive officers and greater than ten percent beneficial owners.


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Director Compensation
 
The following table sets forth all compensation earned or paid to our non-employee directors during the year ended December 31, 2009.2010. Mr. St. Philip served as the Company’sMulder, our former Chief Executive Officer, President, and a director from January 2008 until March 2009, andChairman of the Board did not receive additional compensation for his services as a director. Mr. Mulder was appointed Chief Executive Officer and a director in March 2009, and does not receive additional compensation for his services as a director.
 
Director Compensation Table
 
                 
  Fees Earned or
 Option
 Other
  
  Paid in Cash
 Awards
 Compensation
  
Name
 ($)(1)(2) ($)(3) ($) Total ($)
 
Robert M. Anderton $38,500  $15,067  $0  $53,567 
George V. d’Arbeloff  41,250   38,507   0   79,757 
Daniel S. Durrie  35,625   15,067   0   50,692 
Neil J. Laird  37,375   15,067   0   52,442 
James R. Largent  36,375   17,671   0   54,046 
Gregory D. Waller(4)  14,467   29,555   0   44,022 
                 
  Fees Earned or
 Option
 Other
  
  Paid in Cash
 Awards
 Compensation
  
Name
 ($)(1) ($)(2) ($)(3) Total ($)
 
Federico Pignatelli(4) $0  $34,612  $0  $34,612 
Alex K. Arrow(5)  22,162   75,841   0   98,003 
Gregory E. Lichtwardt(6)  2,375   65,879   0   68,254 
Norman J. Nemoy(5)  24,141   71,919   0   96,060 
Robert M. Anderton(7)  25,000   25,054   0   50,054 
George V. d’Arbeloff(7)  32,500   25,054   28,125   85,679 
Daniel S. Durrie(8)  11,875   0   0   11,875 
Neil J. Laird(8)  12,375   0   0   12,375 
James R. Largent(9)  27,167   25,054   0   52,221 
Gregory D. Waller(9)  25,915   25,054   0   50,969 


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(1)Effective as of May 14, 2008, ourOur non-employee directors are paid a $42,000 annual retainer. The chairman of the Board and the chairmanchairmen of the Audit and Compensation Committees are paid an additional fee of $5,000 per year and committee members are paid an additional $2,500 per year. The chairmen of the Nominating and Corporate Governance Committee and Quality and Compliance Committees are paid an additional fee of $3,000 per year and committee members are paid an additional $1,500 per year. In addition, non-employee directors are automatically granted options to acquire 15,00020,000 shares of our common stock on our annual meeting date. Directors are reimbursed for reasonable travel and lodging expenses incurred by them in attending Board and committee meetings. Effective May 5, 2010, the annual fee for our chairman of the Board will be increased to $25,000, and the annual non-employee director automatic option grant will be increased to 20,000 shares.
 
(2)In light of the global economic downturn, all of the non-employee directors voluntarily waived their quarterly fee installment that would have been otherwise payable in February 2009.
(3)The dollar amounts in this column reflectReflects the aggregate grant date fair value of options granted to our directors for the current fiscal year. These amounts do not reflect actual payments made to our director.directors. There can be no assurance that the full grant date fair value will ever be realized by any director.
 
(3)Payment in conjunction with a settlement agreement related to Mr. d’Arbeloff’s resignation from the Board of Directors, which in addition provided for Mr. d’Arbeloff’s forfeiture of options granted in previous years to acquire 90,000 shares.
(4)Gregory D. WallerIncludes options granted to Mr. Pignatelli subsequent to his tenure as our President, and prior to his appointment as our Chief Executive Officer.
(5)Drs. Arrow and Nemoy were appointed as directors of the Company on July 17, 2010, and agreed to receive options to acquire 10,000 and 5,000 shares of stock on July 19, 2010 in lieu of $10,000 and $5,000 in director fee compensation, respectively.
(6)Mr. Lichtwardt was appointed as director of the Company on October 21, 2009.November 1, 2010 and agreed to receive options to acquire 21,000 shares of stock in lieu of $21,000 in director fee compensation.
(7)Includes fees paid through July 17, 2010, as Dr. Anderton and Mr. d’Arbeloff resigned from the Board of Directors on July 17, 2010.
(8)Includes fees paid through May 5, 2010, as Dr. Durrie and Mr. Laird did not stand for re-election at the 2010 Annual Shareholders Meeting.
(9)Includes fees paid through August 22, 2010 and August 26, 2010 to Messrs. Waller and Largent, respectively, who resigned from the Board of Directors on such dates.


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The following table sets forth the aggregate grant date fair value of each stock option grant awarded to our non-employee directors in 20092010 and 2008.2009.
 
                            
     Number of Shares
       Number of Shares
  
     Underlying Options
 Aggregate Grant Date
     Underlying Options
 Aggregate Grant Date
Director
 
Grant Date
 Exercise Price Originally Granted Fair Value Grant Date Exercise Price Originally Granted Fair Value
Alex K. Arrow November 4, 2010 $1.77   35,000  $42,508 
 July 19, 2010 $1.15   42,500  $33,333 
Gregory E. Lichtwardt(1) November 1, 2010 $1.93   49,750  $65,879 
Norman J. Nemoy November 4, 2010 $1.77   35,000  $42.508 
 July 19, 2010 $1.15   37,500  $29,411 
Robert M. Anderton May 20, 2009 $1.24   15,000  $12,462  May 5, 2010 $1.90   20,000  $25,054 
 March 10, 2009 $0.78   5,000  $2,605 
 May 14, 2008 $3.03   15,000  $26,396  May 20, 2009 $1.24   15,000  $12,462 
 January 7, 2008 $2.89   10,000  $16,629  March 10, 2009 $0.78   5,000  $2,605 
George V. d’Arbeloff May 20, 2009 $1.24   15,000  $12,462  May 5, 2010 $1.90   20,000  $25,054 
 March 10, 2009 $0.78   50,000  $26,045  May 20, 2009 $1.24   15,000  $12,462 
 May 14, 2008 $3.03   15,000  $26,396  March 10, 2009 $0.78   50,000  $26,045 
 January 7, 2008 $2.89   25,000  $41,573 
Daniel S. Durrie May 20, 2009 $1.24   15,000  $12,462  May 20, 2009 $1.24   15,000  $12,462 
 March 10, 2009 $0.78   5,000  $2,605  March 10, 2009 $0.78   5,000  $2,605 
 May 14, 2008 $3.03   15,000  $26,396 
 January 7, 2008 $2.89   10,000  $16,629 
Neil J. Laird May 20, 2009 $1.24   15,000  $12,462  May 20, 2009 $1.24   15,000  $12,462 
 March 10, 2009 $0.78   5,000  $2,605 
 May 14, 2008 $3.03   15,000  $26,396 
 January 7, 2008 $2.89   25,000  $41,573  March 10, 2009 $0.78   5,000  $2,605 
James R. Largent May 20, 2009 $1.24   15,000  $12,462  May 5, 2010 $1.90   20,000  $25,054 
 March 10, 2009 $0.78   10,000  $5,209  May 20, 2009 $1.24   15,000  $12,462 
 May 14, 2008 $3.03   15,000  $26,396  March 10, 2009 $0.78   10,000  $5,209 
Gregory D. Waller May 5, 2010 $1.90   20,000  $25,054 
 January 7, 2008 $2.89   10,000  $16,629  October 21, 2009 $1.87   23,750  $29,555 
Gregory D. Waller October 21, 2009 $1.87   23,750  $29,555 
(1)On November 1, 2010, Mr. Lichtwardt received 28,750 options with an expiration of 10 years, and another 21,000 options with an expiration of five years.
 
The grant date fair value of the grant of options to purchase 15,000 shares of our common stock to each of Drs. Anderton and Durrie, and Messrs. d’Arbeloff, Laird, and Largent on May 20, 2009 was $0.83 per share. The estimated grant date fair value for the May 20, 2009 option grants was determined using the Black-Scholes option valuation model with the following assumptions: market price of $1.24, exercise price of $1.24, expected volatility of 84.0%, risk free interest rate of 2.1%, expected option life of five years, and an expected dividend yield of 0%.


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The grant date fair value for the March 10, 2009 option grant was $0.52, alsoas determined using the Black-Scholes option valuation model with the following assumptions: market price of $0.78, exercise price of $0.78, expected volatility of 84.6%, risk free interest rate of 1.8%, expected option life of five years, and expected dividend yield of 0%.
The grant date fair value for the May 14, 2008 option grant was $1.76, also determined using the Black-Scholes option valuation model with the following assumptions: market price of $3.03, exercise price of $3.03, expected volatility of 66.2%, risk free interest rate of 3.2%, expected option life of five years, and expected dividend yield of 0%.
The grant date fair value for the January 7, 2008 option grant was $1.66, also determined using the Black-Scholes option valuation model with the following assumptions: market price of $2.89 exercise price of $2.89, expected volatility of 66.3%, risk free interest rate of 3.2%, expected option life of five years, andan expected dividend yield of 0%.
 
The grant date fair value of the grant of options to purchase 23,750 shares of our common stock to Mr. Waller on October 21, 2009 was $1.24 per share. The estimated grant date fair value for the October 21, 2009 option grants was determined using the Black-Scholes option valuation model with the following assumptions: market price of $1.87, exercise price of $1.87, expected volatility of 82.7%, risk free interest rate of 2.4%, expected option life of five years, and an expected dividend yield of 0%.
 
Effective asThe grant date fair value of the 2007 annual meeting, the Board, based on the recommendation of the Compensation Committee and its consultant, reduced the numbergrant of options granted automatically to each individual who is elected to our Board as a non-employee director at an annual meeting of stockholders, from an option to purchase 30,00020,000 shares of our common stock to each of Dr. Anderton and Messrs. d’Arbeloff, Waller, and Largent on May 5, 2010 was $1.25 per share. The estimated grant date fair value for the May 5, 2010 option grants was determined using the Black-Scholes option valuation model with the following assumptions: market price of $1.90, exercise price of $1.90, expected volatility of 83.3%, risk free interest rate of 2.4%, expected option life of five years, and an expected dividend yield of 0%.
The grant date fair value for the July 19, 2010 option grant to purchase 15,000 sharesDrs. Arrow and Nemoy was $0.78, as determined using the Black-Scholes option valuation model with the following assumptions: market price of our common stock. In addition,$1.15, exercise


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price of $1.15, expected volatility of 90.6%, risk free interest rate of 1.8%, expected option life of five years, and an expected dividend yield of 0%.
The grant date fair value for the Board modifiedNovember 1, 2010 option grant to Mr. Lichtwardt was $1.32 as determined using the calculation effective March 1, 2007Black-Scholes option valuation model with the following assumptions: market price of $1.93, exercise price of $1.93, expected volatility of 92.3%, risk free interest rate of 1.9%, expected option life of five years, and an expected dividend yield of 0%.
The grant date fair value for options granted automaticallythe November 4, 2010 option grant to newly appointed non-employee directors toDrs. Arrow and Nemoy was $1.21, also determined using the numberBlack-Scholes option valuation model with the following assumptions: market price of shares equal to the sum$1.77, exercise price of (a) 15,000$1.77, expected volatility of 92.3%, risk free interest rate of 1.9%, expected option life of five years, and (b) the productan expected dividend yield of (i) 1,250 and (ii) one plus the number of whole calendar months that will have elapsed between the date of appointment to the Board and the anticipated date of the next annual meeting of stockholders.0%.
 
Effective as of the 2010 annual meeting, the Board, based on the recommendation of the Compensation Committee, increased the number of options granted automatically to each individual who is elected to our Board as a non-employee director at an annual meeting of stockholders to an option to purchase 20,000 shares of our common stock. In addition, the Board modified the calculation for options granted automatically to newly appointed non-employee directors to the number of shares equal to the sum of (a) 20,000 and (b) the product of (i) 1,250 and (ii) one plus the number of whole calendar months that will have elapsed between the date of appointment to the Board and the anticipated date of the next annual meeting of stockholders.
 
Each annual option grant vests over one year in equal quarterly increments, with the first vesting date occurring three months after the date of grant, except in the case of initial option grants for non-employee directors, which vest in monthly installments upon the non-employee director’s completion of each month of service as a non-employee director measured from the option grant date. Vesting is accelerated in full if certain changes in control or ownership occur or if the optionee dies or becomes disabled while serving as a director. Each option has an exercise price per share equal to the closing sale price of our common stock on the grant date and has a maximum term of ten years, subject to earlier termination on the first anniversary of the director’s cessation of our Board service for any reason. Each automatic option is immediately exercisable for all of the option shares and the director would receive unvested shares for each unvested option exercised. However, any unvested shares are subject to repurchase by us, at the lower of the exercise price paid per share or the fair market value per share (determined at the time of repurchase), should the director cease Board service prior to vesting of those shares.


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The following table sets forth the number of shares underlying outstanding stock options (vested and unvested) held by each of our non-employee directors as of December 31, 2009.2010. Our directors did not hold any unvested shares of restricted stock as of December 31, 2009.2010.
 
     
  Shares Underlying Options
Director
 Outstanding at Fiscal Year End
 
Alex K. Arrow77,500
Gregory E. Lichtwardt49,750
Norman J. Nemoy72,500
Robert M. Anderton  150,000 
George V. d’Arbeloff (1)  310,000210,000 
Daniel S. Durrie  83,750 
Neil J. Laird  107,50087,500 
James R. Largent  78,75083,750 
Gregory D. Waller  23,75022,812 
 
PROPOSAL TWO
RATIFICATION OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The firm of BDO Seidman, LLP was selected by the Audit Committee to act as our independent registered public accounting firm for the fiscal year ending December 31, 2010. BDO Seidman, LLP was initially engaged by us on August 8, 2005 and served in that capacity through December 31, 2009. Our Board is asking the stockholders to ratify BDO Seidman, LLP’s appointment. Stockholder ratification of such selection is not required by our bylaws or other applicable legal requirement. However, our Board is submitting the selection of BDO Seidman, LLP to our stockholders for ratification as a matter of good corporate governance. In the event our stockholders fail to ratify the selection, the Audit Committee will reconsider whether or not to continue to retain BDO Seidman, LLP for the 2010 fiscal year. Even if the selection is ratified, the Audit Committee in its discretion may consider the appointment of a different independent registered public accounting firm at any time during the year if our Audit Committee believes that such a change would be in our and our stockholders’ best interests.
A representative of BDO Seidman, LLP is expected to be present at our annual meeting, will have the opportunity to make a statement if he or she desires to do so, and will be available to respond to appropriate questions.
Recommendation of the Board
THE BOARD UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS VOTE “FOR” THE RATIFICATION OF THE SELECTION OF BDO SEIDMAN, LLP TO SERVE AS OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE YEAR ENDING DECEMBER 31, 2010.
PRINCIPAL ACCOUNTANT FEES AND SERVICES
The following table presents fees billed to us for professional services rendered by BDO Seidman, LLP for the fiscal years ended December 31, 2009 and 2008.
         
  Fiscal Year Ended
  Fiscal Year Ended
 
  December 31, 2009  December 31, 2008 
 
Audit Fees $511,118  $887,541 
Audit-Related Fees  0   0 
Tax Fees  0   0 
All Other Fees  0   0 
         
Total $511,118  $887,541 
         
(1)In connection with Mr. d’Arbeloff’s resignation from the Board of Directors on July 17, 2010, the date to exercise his then vested options was extended to two years from date of his resignation.


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Determination of Independence
In considering the nature of the services provided by our independent registered public accounting firm, the Audit Committee determined that such services are compatible with the provision of independent audit services. The Audit Committee discussed these services with our independent registered public accounting firm and our management to determine that they are permitted under the rules and regulations concerning auditor independence promulgated by the SEC to implement the Sarbanes-Oxley Act of 2002, as well as the American Institute of Certified Public Accountants.
Pre-Approval Policy
According to policies adopted by the Audit Committee and ratified by our Board, to ensure compliance with the SEC’s rules regarding auditor independence, all audit and non-audit services to be provided by our independent registered public accounting firm must be pre-approved by the Audit Committee. This policy generally provides that we will not engage any independent registered public accounting firm to render audit or non-audit services unless the service is specifically approved in advance by the Audit Committee.
From time to time, the Audit Committee may pre-approve specified types of services that are expected to be provided to us by our independent registered public accounting firm during the next 12 months. Any such pre-approval will be detailed as to the particular service or type of services to be provided and is also generally subject to a maximum dollar amount. In providing any pre-approval, the Audit Committee considers whether the services to be approved are consistent with the SEC’s rules on auditor independence.
All fees paid to BDO Seidman, LLP were pursuant to engagements pre-approved by the Audit Committee, and none of those engagements made use of the exception to pre-approval contained inRegulation S-X,Rule 2-01(c)(7)(i)(C).
OTHER MATTERS
We know of no other matters that will be presented for consideration at our annual meeting. If any other matters properly come before our annual meeting, it is intended that shares represented by proxies will be voted with respect thereto in accordance with the best judgment and in the discretion of the proxy holders. The enclosed proxy gives Federico Pignatelli and David M. Mulder, or any of them; discretionary authority to vote your shares in accordance with their best judgment with respect to all additional matters that might come before the Annual Meeting.


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EXECUTIVE COMPENSATION
 
Our Executive Officers
 
The following table sets forth certain information regarding our executive officers as of March 17, 2010:15, 2011:
 
       
Name
 
Age
 
Position
 
Federico Pignatelli  5758  Director, Chairman Emeritus,of the Board and PresidentChief Executive Officer
David M. MulderFrederick D. Furry  48Director, Chief Executive Officer, and Secretary
Brett L. Scott5943  Chief Financial Officer
 
In 2009,2010, the following changes occurred within our executive officer team:
 
 • on March 5, 2009,July 6, 2010, Mr. St. PhilipBrett L. Scott resigned his position as our Chief Executive Officer (and as Director) to pursue other interests;Financial Officer;
 
 • on March 5, 2009,August 24, 2010, Mr. David M. Mulder was appointedresigned his position as our President and Chief Executive Officer and Director;(and as our Chairman of the Board);
 
 • on March 10, 2009,August 24, 2010, Mr. CapalloPignatelli was appointed Interim Chief FinancialExecutive Officer; and
 
 • on July 14, 2009,September 30, 2010, Mr. Capallo resignedPignatelli was appointed Chairman of the Board and Chief Executive Officer;
• on November 30, 2010, Mr. Furry was appointed as Interim Chief Financial Officer and Mr. Scott was appointedour Chief Financial Officer.
 
The executive officers are appointed by our Board on an annual basis and serve at the discretion of our Board, subject to the terms of any employment agreement with us, until their earlier resignation or removal. There are no family relationships among any of the directors or executive officers. The following is a brief description of the present and past business experience of Mr. Scott.Furry. The biographiesbiography of Messrs.Mr. Pignatelli and Mulder appearappears earlier in this Proxy Statement under “Proposal One — Election of Directors.”
 
Brett L. Scott,Mr. Furry,59, was previously43, has served as our Chief Financial Officer at North American Scientific, Inc., a Southern California-based medical device company. In March 2009, North American Scientific sought protection under Chapter 11 of the U.S. Bankruptcy Code, and as part of an orderly plan to sell its assets, during the following two months successfully completed the sale of its prostate and breast cancer businesses to Best Theratronics, Ltd. and Portola Medical Inc., respectively. Prior to North American Scientific, Mr. Scott was Chief Financial Officer of Irvine, California-based Alsius Corporation from January 2006 to August 2008.since November 2010. From September 2001 to March 2005, Mr. Scott was Chief Financial Officer at Irvine Biomedical, Inc., an Irvine, California-based medical device company, and from July 20012004 to December 2002 he was Chief Financial Officer2009, Mr. Furry served as an audit partner of Windes & McClaughry. Mr. Furry is a certified public accountant and a memberhas significant experience working with manufacturing and high technology companies for more than 18 years with public accounting firms, including Pricewaterhouse Coopers LLP. He holds an M.B.A. from the A. Gary Anderson Graduate School of the Board of Directors of Irvine, California-based Pain Concepts Inc. Mr. Scott has a bachelor of science degree in business administration fromManagement at the University of Southern California.California, Riverside.
 
Compensation Discussion and Analysis
 
The following discussion and analysis contains statements regarding company performance targets and goals. These targets and goals are disclosed in the limited context of our compensation programs and should not be understood to be statements of management’s expectations or estimates of results or other guidance. The Company specifically cautions investors not to apply these statements to other contexts. As the Company has becomewas deemed a “Smaller Reporting Company” in 2010 under SEC rules, it is no longernot required to provide this section. Therefore, while the information provided below is generally consistent with our disclosure in previous years and provides insight on our compensation practices, investors must be cautioned that it does not purport to include the new compensation disclosure that does not apply to us.
 
This compensation discussion and analysis section discusses the compensation policies and programs for our named executive officers, which consist of: Federico Pignatelli, our PresidentChairman of the Board and former interim Chief Executive Officer; Jake P. St. Philip,Officer, effective September 30, 2010; Frederick D. Furry, our Chief Financial Officer, effective November 30, 2010; David M. Mulder, our former Chief Executive Officer; David M. Mulder, our Chief Executive Officer anduntil August 2010 (and former Chief Financial Officer from April 2008 until his appointment as Chief Executive Officer in March 2009; Frederick M. Capallo,2009); and Brett L. Scott, our former Corporate Controller who served as interim Chief Financial Officer from MarchJuly 2009 until July 2009 and formally resigned from the Company on August 1, 2009; and Brett L. Scott, who was appointed Chief Financial Officer in July 2009.2010. The


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Compensation Committee of our Board of Directors is primarily responsible for overseeing the development and administration of the total compensation program for corporate officers and key executives, and administering our executive incentive bonus and stock plans.
Executive Summary.
Throughout 2008, we experienced certain challenges that had a negative impact on laser system sales. We believe that our sales were negatively impacted by a variety of strategic execution issues, as well as general macro economic conditions with respect to credit availability among other things. In light of these challenges, the Board undertook significant actions in response. Specifically, upon the resignation of Mr. St. Philip, our former Chief Executive Officer, in March 2009, and the Board’s appointment of Mr. Mulder, previously our Chief Financial Officer, to lead Biolase as our new Chief Executive Officer in 2009. The Board also appointed Mr. Pignatelli to serve as our President in 2008. Mr. Pignatelli had served as our interim Chief Executive Officer from November 2007 through January 2008. Mr. Frederick M. Capallo, our former Corporate Controller, assumed the position of interim Chief Financial Officer when Mr. Mulder was promoted to Chief Executive Officer in March 2009, and served in that role until the appointment of Mr. Brett L. Scott to the position of Chief Financial Officer in July 2009.
 
Compensation Objectives.
 
It is important that we employ energetic people who are enthusiastic about our mission and our products, and we believe this must start at the top with our executive officers who set an example for the entire company. We are


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engaged in a very competitive industry, and our success depends upon our ability to attract and retain qualified executive officers by offering them competitive compensation packages. Our compensation programs for our executive officers are designed to attract and retain such key executive officers, and to reward them in a fashion commensurate with our corporate performance and the value created for our stockholders. Our compensation programs also support our short-term and long-term strategic goals and values and reward the individual contributions of our executive officers to our success.
 
Our policy is to provide our Chief Executive Officer and other executive officers with competitive compensation opportunities that reward their contribution to our financial success and individual performance, while providing financial stability and security. Accordingly, the compensation package for the Chief Executive Officer and other executive officers is mainly comprised of the following compensation elements: (1) a base salary, designed to be competitive with salary levels in the industry and to reflect individual performance; (2) an annual incentive bonus payable in cash and based on the review of certain annual financial and other performance measures, which supports our short-term performance; (3) where appropriate, long-term stock-based incentive awards, which support our long-term performance and are designed to strengthen the mutual interests between our executive officers and our stockholders; and (4) severance payments and other benefits payable upon termination of an officer’s employment by us without cause or by our officer for good reason, including following a change of control of us, which promotes executive retention and efforts toward the best interests of the stockholders in the event of an actual or threatened change of control of us. We believe that each of these elements and their combination is necessary to support our overall compensation objectives.
 
Determination of Compensation Awards.
 
The Compensation Committee determines the compensation to be paid to our executive officers. The Compensation Committee periodically reviews the total compensation levels and the distribution of compensation among the compensation elements identified above for each of our executive officers. The Compensation Committee determines the total compensation levels for our executive officers by considering each executive officer’s position and responsibilities, the individual’s performance of his job-related duties and responsibilities and our financial performance, in the context of our compensation policies and objectives and competitive market data applicable to each executive officer’s position. Our approach is to consider competitive compensation practices as a relevant factor rather than establishing compensation at specific benchmark percentiles.


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This enables us to respond to dynamics in the labor market and provides us with flexibility in maintaining and enhancing our executive officers’ engagement, focus, motivation and enthusiasm for our future.
 
The principal factors that were taken into account in establishing each executive officer’s compensation package for 20092010 are described below. The Compensation Committee may in its discretion apply entirely different factors, such as different measures of financial performance, for future years.
In May 2006, our Compensation Committee retained Aon as our Executive compensation consultants. In May 2007, Aon, through its business unit Radford provided a competitive assessment of our executive compensation practicesdecisions with respect to Messrs. Mulder and levels. The Compensation Committee has the sole authority, as it deems appropriate, to retain or terminate the consultant. The consultant reports directly and exclusively to the Compensation Committee. In 2008, neither Radford nor Aon provided any consulting services related to executive compensation for us.
The Compensation CommitteeScott, were made its 2009 executive compensation decisions in April 2009 with respect to Mr. Mulder and in July 2009, with respect to Mr. Scott,respectively, taking into account, among other things, the consultant’sreport of Aon (through its business unit Radford), compensation consultants who provided a competitive assessment in 2007 of our executive compensation practices and provided a compensation market analysis. The consultant’s May 2007 market analysis provided an assessment of theconsultant reported on direct compensation levels (including base salary, target annual incentive compensation, target total cash compensation, long-term incentives and target total direct compensation) for certainof former executives of the Company relative to survey data and proxy data. To compile the proxy data, the consultant gathered data from proxy statements of the 35 peer group companies listed below. The peer group was divided into two groups and comparative information was separately provided with respect to each group. Peer group companies were (1) medical product companies with annual revenues ranging from $50 million to $100 million; and (2) medical product companies with annual revenues ranging from $50 million to $200 million, which are highlighted by an *. Our revenues and market capitalization fell at approximately the 20th percentile of the peer group companies.
Abaxis, Inc.*Cutera, Inc.*I-Flow Corp.*Palomar Medical Technologies, Inc.*
Allied Healthcare Products, Inc. Cyberonics, Inc.*IRIS International, Inc.*Possis Medical, Inc.*
AngioDynamics, Inc.*Cynosure, Inc.*Kensey Nash Corp.*Quidel Corp.*
Aspect Medical Systems, Inc.*Del Global Technologies Corp.Kewaunee Scientific Corp.Sonic Innovations, Inc.*
Candela Corp.*Digirad Corp.Meridian Bioscience, Inc.*SonoSite, Inc.*
Cantel Medical Corp.*Exactech, Inc.Molecular Devices Corp.SurModics, Inc.*
Cardiac Science Corp.*E-Z-EMNew Brunswick Scientific Co., Inc.Synovis Life Technologies, Inc.
Cholestech Corp.*FoxHollow Technologies, Inc.*NuVasive, Inc.*Young Innovations, Inc.*
Clinical Data, Inc.*HealthTronics, Inc.Osteotech, Inc.
 
TheIn addition, the Compensation Committee periodically reviews the composition of the peer group and the criteria and data used in compiling the list, and considers modifications to the group. The Compensation Committee believes that our most direct competitors for executive talent include significantly larger and better-capitalized companies in the medical device industry, comprising a broader range of companies than those with which we usually are compared for purposes of stock performance. In making its 2009 compensation decisions, the Compensation Committee mainly relied on the survey data and reviewed the proxy peer group data for validation.
Based on the May 2007 consultant’s report, in 2009 we provided our named executive officers with base salaries and total target cash compensation (base salaries plus target bonus opportunities at expected performance) which were around the 50th percentile of our peer group companies, and long-term incentive grants based on grant date fair values which were below the 50th percentile of survey companies.
 
Components of Compensation.
 
During the 20092010 fiscal year, our executive officers’ compensation was composed of base salary, annual incentive bonuses, equity compensation, certain perquisites and potential severance payments and other


17

benefits payable upon certain events, including a qualifying termination of the executive officer’s employment subsequent to a change of control of us.


13

Base Salaries.
 
Our executive officers’ base salaries are assessed annually by the Compensation Committee, taking into account each officer’s position and responsibilities, including accomplishments and contributions, experience and tenure. In addition, the Compensation Committee considered the market analysis provided by the consultant.
 
Mr. St. Philip’s annual base salary was set, at the time of his hire in January 2008, at $350,000 in connection with his employment agreement. His base salary was negotiated and was based on existing compensation levels at his prior place of employment, comparable market data and our compensation goals and objectives. Mr. St. Philip’s base salary was compared to the survey data provided by the consultant in May 2007 and the Compensation Committee noted that his base salary was at the 97th percentile of the market 50th percentile, which the Compensation Committee considered to be market competitive.
In January 2008, Mr. Pignatelli was appointed to the position of President at an annual salary of $150,000. The Compensation Committee approved this amount in light of Mr. Pignatelli’s then part-time position as our President. In light of the current global economic environment, on December 1, 2008, Mr. Pignatelli voluntarily reduced his annual base salary to $72,000. In June 2010 Mr. Pignatelli was terminated as President, and in August 2010 Mr. Pignatelli was appointed to the position of Interim Chief Executive Officer at an annual salary of $1.00. Mr. Pignatelli was appointed our permanent Chief Executive Officer on September 30, 2010 and agreed to continue at an annual salary of $1.00.
Mr. Furry’s annual base salary was set, at the time of his hire as our Chief Financial Officer in November 2010, at $180,000. His base salary was negotiated and was based on existing compensation levels at his prior place of employment, comparable market data, and our compensation goals and objectives.
 
Mr. Mulder’s annual base salary was set, at the time of his hire as our Chief Financial Officer in April 2008, at $235,000 in connection with his employment agreement. His base salary was negotiated and was based on existing compensation levels at his prior place of employment, comparable market data, and our compensation goals and objectives.objectives at such time. Mr. Mulder’s base salary was compared to the survey data provided by the consultant in May 2007 and was considered by the Compensation Committee to be market competitive. Under the terms of two letter agreements in March and April 2009 that amended Mr. Mulder’s employment agreement, Mr. Mulder was elevated to the position of Chief Executive Officer, appointed as a Director of the Company, and his annual base salary was increased to $250,000.
 
Mr. Scott’s annual base salary was set, at the time of his hire as our Chief Financial Officer in July 2009, at $200,000 in connection with his employment agreement and willwas to be increased up to $210,000 per annum when the reduced salary program currentlythen in effect for Company Senior Executives iswas eliminated. On November 30, 2009, Mr. Scott’s annual salary was increased to $205,000, based on a 50% reinstatement of the salary reduction program. His base salary was negotiated and was based on existing compensation levels at his prior place of employment, comparable market data and our compensation goals and objectives.objectives at such time. Mr. Scott’s base salary was compared to the survey data provided by the consultant in May 2007 and was considered by the Compensation Committee to be market competitive.
 
Annual Incentive Bonuses.
 
Our annual incentive bonuses arehave been historically intended to reward accomplishment of our overall short-term corporate performance and objectives for a fiscal year.
 
Mr. St. Philip.Pignatelli.  By resolution of the Compensation Committee of the Board, Mr. St. Philip’sPignatelli’s maximum performance bonus opportunity for fiscal 20082009 was set at up to $45,000, as determined by the timeachievement of his hirecertain criteria established by the Board. On January 28, 2010, the Compensation Committee approved Mr. Pignatelli’s 2009 performance bonus award in January 2008, at $225,000the amount of $30,000. No annual incentive bonus opportunity was set for Mr. Pignatelli in connection with2010.
Mr. Furry.  As Mr. Furry commenced his employment agreement, which was prorated based upon the number of days he was employed with the Company in 2008. His maximumNovember 2010, no annual incentive bonus opportunity was negotiated and was based on existing compensation levels at his prior place of employment, comparable market data and our compensation goals and objectives.set for Mr. St. Philip’s maximum bonus opportunity was compared by the Compensation Committee to the survey data provided by the consultantFurry in May 2007 and considered to be market competitive. Mr. St. Philip resigned effective March 5, 2009 and agreed not to receive any payout that may have been applicable under the maximum performance bonus opportunity and because of such agreement, the Compensation Committee did not make a determination of whether the maximum performance bonus opportunity criteria had been met.2010.


18

Mr. Mulder.  Mr. Mulder’s maximum performance bonus opportunity for fiscal 2008 was set, at the time of his hire in April 2008, at $100,000 in connection with his employment agreement, prorated based on the number of days he was employed with the Company during 2008. His maximum bonus opportunity was negotiated and was based on existing compensation levels at his prior place of employment, comparable market data and our compensation goals and objectives. Mr. Mulder’s maximum bonus opportunity was compared by the Compensation Committee to the survey data provided by the consultant in May 2007 and considered to be market competitive. Under the terms of a letter agreement in April 2009 that amended Mr. Mulder’s employment agreement in connection with his elevation to Chief Executive Officer, Mr. Mulder’s maximum performance bonus opportunity for fiscal 2009 iswas set at up to $150,000, as determined by the achievement of


14

certain criteria established by the Board. On January 28, 2010, the Compensation Committee approved Mr. Mulder’s 2009 performance bonus in the amount of $100,000.
Mr. Pignatelli.  By resolution of the Compensation Committee of the Board, Mr. Pignatelli’s maximum performance No annual incentive bonus opportunity was set for fiscal 2009 is set at up to $45,000, as determined by the achievement of certain criteria established by the Board. On January 28, 2010, the Compensation Committee approved Mr. Pignatelli’s 2009 performance bonusMulder in the amount of $30,000.2010.
 
Mr. Scott.  Mr. Scott’s maximum performance bonus opportunity for fiscal 2009 was set, at the time of his hire in July 2009, at 25% of his annual base salary in connection with his employment agreement, prorated based on the number of days he was employed with the Company during 2009. His maximum bonus opportunity was negotiated and was based on existing compensation levels at his prior place of employment, comparable market data and our compensation goals and objectives. Mr. Scott’s maximum bonus opportunity was compared by the Compensation Committee to the survey data provided by the consultant in May 2007 and considered to be market competitive. On January 28, 2010, the Compensation Committee approved Mr. Scott’s 2009 performance bonus in the amount of $24,151. No annual incentive bonus opportunity was set for Mr. Scott in 2010.
 
Stock-Based Incentive Awards.
 
Stock-based incentives are designed to align the interests of our executive officers with those of our stockholders and provide each individual with a significant incentive to manage us from the perspective of an owner with an equity stake in the business. Stock options allow the officers to acquire shares of our common stock at a fixed price per share (which is at least the closing sale price of our stock on the grant date) over a specified period of time, generally ten years.time. Stock options generally become exercisable in a series of installments over a three-year period, contingent upon the officer’s continued employment with us. Accordingly, stock options provide a return to the executive officer only if he remains employed by us during the vesting period, and then only if the market price of the shares appreciates over the option term. As such, stock options not only reward our corporate performance but are also a key retention tool. The size of the option grant to each executive officer, including any grant considered for the Chief Executive Officer and our other named executive officers, is set at a level that is intended to create a meaningful opportunity for stock ownership based on the individual’s current position with us, the individual’s performance of his job related duties and responsibilities in recent periods and his or her potential for future responsibility and promotion over the option term. The Compensation Committee also takes into account the number of unvested options held by the executive officer in order to maintain an appropriate level of equity incentive for that individual. The relevant weight given to each of these factors varies from individual to individual.
 
Mr. Pignatelli was not granted any stock-based incentive awards in his position as an officer of the Company in 2010. Options to acquire 35,000 shares granted to Mr. Pignatelli in July 2010 were in his capacity as a board member and not as an officer of the Company.
At the time of his hire in January 2008,on November 30, 2010, Mr. St. PhilipFurry was granted a nonqualified stock option to purchase 450,000150,000 shares of our common stock at an exercise price of $2.89,$2.00. The option granted shall vest and be exercisable one-sixth on the fair market valuesixth month anniversary of our stock on the grant date, January 7, 2008. The stockwith the remaining option would have vestedvesting and becomebeing exercisable in twelvea series of ten (10) consecutive three-month equal quarterly installments commencing on March 31, 2008,over a thirty (30) month period, and is subject to Mr. St. Philip’sFurry’s continued employment with us.employment. The Compensation Committee considered this initial grant as necessary and appropriate to obtain Mr. St. Philip’sFurry’s services. Mr. St. Philip resigned effective March 5, 2009 and, prior to the date of exercise expiration, Mr. St. Philip could have exercised an option to purchase up to 150,000 shares of our common stock at an exercise price of $2.89 per share.


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At the time of his hire in April 2008, Mr. Mulder was granted a nonqualified stock option to purchase 200,000 shares of our common stock at an exercise price of $2.60, the fair market value of our stock on the grant date, April 30, 2008. The stock option vested and became exercisable as to one-third on April 3, 2009 and the remaining shares become exercisable in a series of eight successive equal quarterly installments commencing on April 30, 2009, the first anniversary of the grant date, subject to Mr. Mulder’s continued employment with us. The Compensation Committee considered this initial grant as necessary and appropriate to obtain Mr. Mulder’s services.
On January 26, 2009, as part of an incentive award relating to his personal efforts as our Chief Financial Officer during 2008, Mr. Mulder was granted a nonqualified stock option to purchase 75,000 shares of our common stock at an exercise price of $0.82, the fair market value of our common stock on the grant date. The January 2009 stock option will vest and become exercisable over eight equal quarterly installments commencing on January 26, 2010, the first anniversary of the grant date, subject to Mr. Mulder’s continued employment with us.
On March 10, 2009, as part of a special incentive award relating to the renewal of a distribution agreement with our primary distributor, Mr. Mulder was granted a nonqualified stock option to purchase 50,000 shares of our common stock at an exercise price of $0.78, the fair market value of our stock on the grant date. The March 2009 stock option will vestvested and becomebecame exercisable immediately.
On April 3, 2009, as part of an amendment to Mr. Mulder’s employment agreement in connection with his elevation to the position of Chief Executive Officer, he was granted a nonqualified stock option to purchase 100,000 shares of our common stock at an exercise price of $0.93, the fair market value of


15

our stock on the grant date. The April 2009 stock option vest and became exercisable over twelve equal quarterly installments commencing on July 3, 2009, subject to Mr. Mulder’s continued employment with us. The Compensation Committee considered these grants as necessary and appropriate for Mulder’s services.
 
At the time of his hire in July 2009, Mr. Scott was granted a nonqualified stock option to purchase 220,000 shares of our common stock at an exercise price of $1.69, the fair market value of our stock on the grant date, July 14, 2009. The stock option willwas to vest and become exercisable as to one-third on July 14, 2010 and the remaining shares become exercisable in a series of eight successive equal quarterly equal installments commencing on July 14, 2010, the first anniversary of the grant date, subject to Mr. Scott’s continued employment with us. The Compensation Committee considered this initial grant as necessary and appropriate to obtain Mr. Scott’s services.
 
Policies with Respect to Equity Compensation Award Determinations.
 
We do not time the award of stock option grants in advance of material announcements in order to achieve lower exercise prices. In the past, we have not granted any equity compensation awards other than stock options. Our policy is that stock options are granted with an exercise price equal to or greater than the closing price of our common stock on the date of grant, and that all option grants are approved in advance of or on the date of the grant. The Secondary Stock Option Committee (consisting of our Chief Executive Officer and Chief Financial Officer) is delegated authority by the Board to approve stock option grants in an amount not to exceed 5,00012,000 shares per person (effective March 2011) and only for newly-hired employees. For stock option grants to new employees, our policy is that they be issued on, and receive an exercise price equal to or greater than the closing stock price of our common stock on such employee’s start date, presuming that the award was pre-approved by the Secondary Stock Option Committee.
 
Perquisites and Other Benefits.
 
Our executive officers are entitled to a few benefits that are not otherwise available to all of our employees. In this regard it should be noted that we do not provide pension arrangements, post-retirement health coverage, or similar benefits for our executives or employees.
At the time of his hire in January 2008, we agreed to provide Mr. St. Philip, who lived in San Diego, California, with an apartment in Irvine, California that was reasonable to both the Board and Mr. St. Philip in order to facilitate Mr. St. Philip’s work schedule by reducing the amount of time he would otherwise have


20

been required to commute to and from our office. However, Mr. St. Philip elected not to use this perquisite and no apartment was provided. Mr. St. Philip did not receive a car allowance. In addition, at the time of his hire in April 2008, we agreed to reimburse Mr. Mulder certain relocation expenses.
The Compensation Committee intends to phase outdoes not provide any such perquisites overat this time.
 
Severance and Change of Control Arrangements.
 
Messrs. Pignatelli and Furry are employed by the Company on an “at will” basis, and they do not have any employment agreements, severance provisions or change in control agreements with the Company.
In March 2009,August 2010, we entered into a Separation and General Release Agreement with Mr. St. PhilipMulder relating to his terminationstermination of employment as Chief Executive Officer and Chairman of the Board on March 5, 2009August 24, 2010, which provided for a severance payment of $350,000,$10,416, and payment of certain COBRA and insurance premiums. The Separation and General Release Agreement was negotiated and entered into in connection with the execution of a release and resignation from Board service. Mr. St. Philip also agreed to forego any 2008 performance bonus amounts he may have been entitled to.
Mr. St. Philip’s employment agreement, negotiated at the time of his hire in January 2008, provided for certain severance and change of control benefits. If Mr. St. Philip’s employment was terminated other than for cause or if he resigned for good reason, Mr. St. Philip was entitled to receive severance benefits equal to:
• one year of annual base salary;
• the full amount of his annual performance bonus target for the calendar year in which the effective date of termination occurs;
• twelve months of paid COBRA premiums under our medical and dental benefit plans;
• a $3,000 lump sum cash payment; and
• payment of his premiums under our group life insurance, accidental death and dismemberment and disability benefit plans during the twelve month period following the effective date of termination.
Furthermore, if his employment was terminated without cause or he resigned for good reason and such termination occurred within twelve months of a change in control of us, Mr. St. Philip would be entitled to receivesuperseded the severance benefits summarized above andprovisions contained in the Employment Agreement, as amended, that we had with Mr. St. Philip’s stock granted upon his hiring would become fully vested and exercisable on the first business day that is at least 60 days after the effective date of termination.Mulder.
 
Mr. Mulder’s employment agreement, negotiated at the time of his hire in April 2008, and amended in March and April of 2009, also providesprovided for certain severance and change of control benefits. If Mr. Mulder’s employment iswas terminated other than for cause or if he resignsresigned for good reason, Mr. Mulder will bewould have been entitled to receive severance benefits equal to:
 
 • one year of annual base salary payable in twenty-four (24) equal semi-monthly installments; and
 
 • twelve months of paid COBRA premiums under our medical and dental benefit plans.
 
Furthermore, if his employment iswas terminated without cause or he resignsresigned for good reason and such termination occursoccurred within twelve months of a change in control of us, Mr. Mulder will bewould have been entitled to receive the severance benefits summarized above (except that the one year of annual base salary will bewould have been paid in lump sum on the first business day that is at least 60 days after the effective date of termination) and Mr. Mulder’s stock granted upon his hiring shallwould have become fully vested and exercisable on the first business day that is at least 60 days after the effective date of termination.
 
In July 2010, we entered into a Separation and General Release Agreement with Mr. Scott relating to his termination of employment as Chief Financial Officer on July 6, 2010, which provided for a severance payment of


16

$17,500, and payment of certain COBRA and insurance premiums. The Separation and General Release Agreement superseded the severance provisions contained in the Employment Agreement we had with Mr. Scott.
Mr. Scott’s employment agreement, negotiated at the time of his hire in July 2009 also providesprovided for certain severance and change of control benefits. If Mr. Scott’s employment iswas terminated other than for cause or if he resignsresigned for good reason, Mr. Scott will bewould have been entitled to receive severance benefits equal to:
 
 • six months’ worth of annual base salary payable in twelve (12) equal semi-monthly installments; and
 
 • six months of paid COBRA premiums under our medical and dental benefit plans.


21

 
Furthermore, if his employment iswas terminated without cause or he resignsresigned for good reason and such termination occurs within twelve months of a change in control of us, Mr. Scott will bewould have been entitled to receive the severance benefits summarized above (except that the six months’ worth of annual base salary will bewould have been paid in lump sum on the first business day that is at least 60 days after the effective date of termination) and Mr. Scott’s stock granted upon his hiring shallwould become fully vested and exercisable on the first business day that is at least 60 days after the effective date of termination.
 
Compliance with Internal Revenue Code Section 162(m).
 
Section 162(m) of the Internal Revenue Code disallows a tax deduction to publicly held companies for compensation paid to certain of their executive officers to the extent that such compensation exceeds $1.0 million per covered officer in any fiscal year. The limitation applies only to compensation that is not considered to be performance-based. Nonperformance-based compensation paid to our executive officers for the 20082010 fiscal year did not exceed the $1.0 million limit per officer, and we do not expect the nonperformance-based compensation to be paid to our executive officers for the 20092011 fiscal year to exceed that limit. Our option grants under our 2002 Stock Incentive Plan have been designed to qualify as performance-based compensation.
 
There are certain circumstances under which the Board and Compensation Committee may decide to exceed the deductibility limit imposed under Section 162(m) or to otherwise pay non-deductible compensation. These circumstances may include maintaining a competitive salary for a named executive officer position or attracting highly qualified executives to join us and to promote their retention with compensation that is not performance based as part of their initial employment offers. As an inducement for Mr. St. Philip to join us as Chief Executive Officer, we granted him a nonqualified stock option to purchase 450,000 shares of our common stock at an exercise price of $2.89 per share, the fair market value of our stock on the grant date, January 7, 2008. The nonqualified stock option grant to Mr. St. Philip was made outside of the 2002 Stock Incentive Plan and does not qualify as a performance award under Section 162(m). Because it is unlikely that the cash compensation payable to any of our executive officers in the foreseeable future will approach the $1.0 million limit, we do not expect to take any action to limit or restructure the elements of cash compensation payable to our executive officers so as to qualify that compensation as performance-based compensation under Section 162(m). We will reconsider this decision should the individual cash compensation of any executive officer ever approach the $1.0 million level.
 
Sections 280G and 4999 of the Internal Revenue Code impose certain adverse tax consequences on compensation treated as excess parachute payments. An executive is treated as having received excess parachute payments for purposes of Sections 280G and 4999 of the Internal Revenue Code if he or she receives compensatory payments or benefits that are contingent on a change in the ownership or control of a corporation, and the aggregate amount of such contingent compensatory payments and benefits equals or exceeds three times the executive’s base salary amount. An executive’s excess parachute payments are subject to a 20% excise tax under Section 4999 of the Internal Revenue Code, in addition to any applicable federal income and employment taxes. Also, the corporation’s compensation deduction in respect of the executive’s excess parachute payments is disallowed under Section 280G of the Internal Revenue Code. If we were to be subject to a change in control, certain amounts received by our executives could be excess parachute payments under Sections 280G and 4999 of the Internal Revenue Code. As discussed under “Potential Payments Upon Termination or Change in Control” we do not provide our executive officers with tax gross up payments in the event of a change in control.


2217

Summary Compensation Table
 
The following table shows the compensation earned by, or awarded or paid to, each of our named executive officers (“NEOs”) for the fiscal years ended December 31, 2010, 2009, 2008 and 2007:2008:
 
Summary Compensation Table
 
                             
          Non-Equity
    
        Option
 Incentive Plan
 All Other
  
        Awards
 Compensation
 Compensation
 Total
Name and Principal Position
 Year Salary ($) Bonus ($) ($)(1) ($) ($)(2) ($)
 
Federico Pignatelli  2009  $67,000  $30,000(3)  26,045  $0  $0  $123,045 
President and Former  2008   137,615   2,500   166,000   0   0   306,115 
Chief Executive Officer  2007   1(4)  0   0(4)  0   0   1 
David M. Mulder  2009   244,596   106,605(3)  129,348   0   72,205(5)  536,471 
Chief Executive  2008   147,814   0   302,000   0   12,057   461,871 
Officer, Secretary and Former Chief Financial Officer                            
Jake P. St. Philip  2009   362,549   0   0   0   11,187(6)  373,736 
Former Chief Executive Officer  2008   334,295   0   748,305   0   22,897   1,105,497 
Brett L. Scott  2009   85,288   24,151(3)  249,920   0   6,442   365,801 
Chief Financial Officer                            
Frederick M. Capallo  2009   78,903   0   0   0   0   78,903 
Interim Chief Financial Officer  2008   162,209   32,659   30,602   0   9,757   235,227 
                             
          Non-Equity
    
        Option
 Incentive Plan
 All Other
  
        Awards
 Compensation
 Compensation
 Total
Name and Principal Position
 Year Salary ($) Bonus ($) ($)(1) ($) ($)(2) ($)
 
Federico Pignatelli  2010  $41,467  $   $34,612  $0  $0  $76,079 
Chief Executive Officer,  2009   67,000   30,000(3)  26,045   0   0   123,045 
Chairman of the Board,  2008   137,615   2,500   166,000   0   0   306,115 
and Former President(4)                            
Frederick D. Furry  2010   8,192   0   147,285   0   0   155,477 
Chief Financial Officer                            
David M. Mulder  2010   191,666   0   0   0   16,577(6)  208,243 
Former Chief Executive Officer,  2009   244,596   106,605(3)  129,348   0   72,205(5)  536,471 
Secretary, and Former Chief  2008   147,814   0   302,000   0   12,057   461,871 
Financial Officer                            
Brett L. Scott  2010   124,544       0   0   21,889(6)  146,433 
Former Chief Financial Officer  2009   85,288   24,151(3)  249,920   0   6,442   365,801 
 
 
(1)The dollar amounts in this column reflect the aggregate grant date fair value of options granted to our NEOs for each of the applicable fiscal years. These amounts do not reflect actual payments made to our NEOs. There can be no assurance that the full grant date fair value will ever be realized by any NEO.
 
(2)Except as set forth in these footnotes, these amounts represent accrued unused vacation hours for 2008, 2009 and 2009.2010. Upon an executive’s termination, we will pay all of the employee’s unused vacation hours, (2) including any permitted banked hours.
 
(3)Includes performance bonuses earned in 2009 that were paid in March 2010.
 
(4)Mr. Pignatelli received no option awards in 2008an annual salary of $150,000 for his service as interim Chief Executive Officer. He received an option award prior to November 2007 as part of his director compensation. See “Proposal One — Director Compensation” for compensation associated with his role as one of our directors.President, from January 2008 until December 2008. Effective December 1, 2008, Mr. Pignatelli resigned fromvoluntarily reduced his positionsalary to $72,000 which was in effect until June 2010. When Mr. Pignatelli was appointed as our interim Chief Executive Officer on January 2, 2008 following the appointment of Jake St. Philip as our Chief Executive Officer. Mr. Pignatelli served as our President in 2008 for whichAugust 2010, he received avoluntarily agreed to an annual salary of $150,000. Effective December 1, 2008, this salary$1.00. Mr. Pignatelli’s option award in 2010 was voluntarily reduced by Mr. Pignatelli to $72,000.in respect of his service on the Board of Directors.
 
(5)In addition to accrued unused vacation hours, this amount includes $27,077 for which Mr. Mulder was reimbursed at 50% of his temporary housing cost in the State of California before his permanent relocation to California in December 2009 and additional relocation costs of $16,283 that were incurred in 2009 and reimbursed to Mr. Mulder in 2010.
 
(6)Mr. St. Philip’s COBRA insurance payments made on his behalf by the Company.Includes severance and unused vacation hours paid upon resignation.


2318

 
Grants of Plan-Based Awards
 
The following table presents information regarding annual incentive bonus awards and equity incentive awards granted to the executive officers for fiscal 2009.during 2010.
 
                                                       
         All Other
             All Other
    
         Option
             Option
    
         Awards:
             Awards:
    
   Estimated Possible Payouts Under
 Number of
       Estimated Possible Payouts Under
 Number of
    
   Non-Equity Incentive Plan
 Securities
 Exercise on
 Grant Date
   Non-Equity Incentive Plan
 Securities
 Exercise on
 Grant Date
   Awards(1) Underlying
 Base Price
 Fair Value
   Awards(1) Underlying
 Base Price
 Fair Value
 Grant
 Threshold
 Target
 Maximum
 Options
 of Option
 of Option
 Grant
 Threshold
 Target
 Maximum
 Options
 of Option
 of Option
Name
 Date ($) ($) ($) (2)(#) Awards (3)($) Awards (4)($) Date ($) ($) ($) (2)(#) Awards (3)($) Awards (4)($)
Federico Pignatelli  3/10/09   N/A   30,000   45,000   50,000  $0.78  $26,045   7/2/10   N/A   N/A   N/A   35,000  $1.45  $34,612 
President and Former Chief Executive Officer                     
Chief Executive Officer     N/A                
and Former President                     
Frederick D. Furry  11/30/10   N/A   N/A   N/A   150,000  $2.00  $147,285 
Chief Financial Officer                     
David M. Mulder  4/3/09   N/A   100,000   150,000   100,000  $0.93  $62,233      N/A   N/A   N/A   0  $0  $0 
Chief Executive Officer,  3/10/09            50,000   0.78   26,045 
Secretary, and Former  1/26/09            75,000   0.82   41,070 
Chief Financial Officer                     
Former Chief Executive Officer, Secretary, and Former Chief Financial Officer                     
Brett L. Scott  7/14/09   N/A   24,151   24,151   220,000  $1.69  $249,920      N/A   N/A   N/A   0  $0  $0 
Chief Financial Officer                     
Former Chief Financial Officer                     
 
 
(1)The amounts in these columns represent the range of potential payouts for fiscal year 20092010 under the incentive bonus plan based on certain pre-established performance measures described under the caption “Compensation Discussion and Analysis — Annual Incentive Bonuses.” Bonus payouts below and above theexpected performancelevel are determined in the Compensation Committee’s discretion. Performance bonuses noted were earned in 2009 and paid in March 2010.
 
(2)Amounts shown in this column represent stock options granted in 2009,2010, as described under the caption “Compensation Discussion and Analysis — Stock Based Incentive Awards.”
 
(3)Each option grant has an exercise price equal to, or greater than, the closing stock price of common stock at the time of grant.
 
(4)The grant date fair value for the March 10, 2009July 2, 2010 option grant was $0.52,$0.99, and was determined using the Black-Scholes option valuation model with the following assumptions: market price of $0.78,$1.45, exercise price of $0.78,$1.45, expected volatility of 84.6%90.6%, risk free interest rate of 1.8%, expected option life of five years, and an expected dividend yield of 0%.
The grant date fair value for the April 3, 2009November 30, 2010 option grant was $0.62,$0.98, and was determined using the Black-Scholes option valuation model with the following assumptions: market price of $0.93,$1.53, exercise price of $0.93,$2.00, expected volatility of 84%92.3%, risk free interest rate of 2.0%1.9%, expected option life of five years, and expected dividend yield of 0%.
The grant date fair value for the January 26, 2009 option grant was $0.55, also determined using the Black-Scholes option valuation model with the following assumptions: market price of $0.82, exercise price of $0.82, expected volatility of 84.6%, risk free interest rate of 1.8%, expected option life of five years, and expected dividend yield of 0%.
The grant date fair value for the July 14, 2009 option grant was $1.14, also determined using the Black-Scholes option valuation model with the following assumptions: market price of $1.69, exercise price of $1.69, expected volatility of 83.9%, risk free interest rate of 2.4%, expected option life of five years, andan expected dividend yield of 0%.


2419

 
Outstanding Equity Awards at Fiscal Year-End
 
The following table sets forth summary information regarding the outstanding equity awards held by each of our named executive officers at December 31, 2009.2010. We have not granted equity awards other than options in the past.
 
                 
  Option Awards
  Number of
 Number of
    
  Securities
 Securities
    
  Underlying
 Underlying
    
  Unexercised
 Unexercised
 Option
 Option
  Options(#)(1)
 Options(#)(1)
 Exercise
 Expiration
Name
 Exercisable Unexercisable Price($) Date
 
Federico Pignatelli  30,000(2)  0  $5.240   5/23/12 
President and Former Interim  30,000(2)  0   11.070   4/29/13 
Chief Executive Officer  30,000(2)  0   11.960   5/26/14 
   30,000(2)  0   5.810   11/15/15 
   30,000(2)  0   10.400   4/20/16 
   15,000(2)  0   5.940   5/16/17 
   87,500   12,500   2.890   1/7/18 
   50,000   0   0.780   3/10/19 
David M. Mulder  100,004   99,996   2.600   4/30/18 
Chief Executive Officer,  0   75,000   0.820   1/26/19 
Secretary and Former Chief  50,000   0   0.780   3/10/19 
Financial Officer  16,667   83,333   0.930   4/3/19 
Brett L. Scott  0   220,000   1.690   7/14/19 
Chief Financial Officer                
Frederick M. Capallo(3)  0   0   N/A   N/A 
Former Interim Chief Financial Officer                
                 
  Option Awards
  Number of
 Number of
    
  Securities
 Securities
    
  Underlying
 Underlying
    
  Unexercised
 Unexercised
 Option
 Option
  Options(#)
 Options(#)
 Exercise
 Expiration
Name
 Exercisable Unexercisable Price($) Date
 
Federico Pignatelli  30,000(1)  0  $5.240   5/23/12 
Chief Executive Officer and  30,000(1)  0   11.070   4/29/13 
Former President  30,000(1)  0   11.960   5/26/14 
   30,000(1)  0   5.810   11/15/15 
   30,000(1)  0   10.400   4/20/16 
   15,000(1)  0   5.940   5/16/17 
   100,000   0   2.890   1/7/18 
   50,000   0   0.780   3/10/19 
   8,750(1)  26,250   1.450   7/2/20 
Frederick D. Furry  0   150,000   2.00   11/30/15 
Chief Financial Officer                
David M. Mulder(2)  0   0   N/A   N/A 
Former Chief Executive Officer, Secretary and Former Chief Financial Officer                
Brett L. Scott(3)  0   0   N/A   N/A 
Former Chief Financial Officer                
 
 
(1)In December 2005, the Compensation Committee approved the acceleration of vesting of certain unvested stock options granted under our 2002 Stock Incentive Plan that were held by certain of our key employees and officers, including our named executive officers. As a result of such acceleration, options granted to our named executive officers prior to 2006 became fully vested. The Compensation Committee imposed restrictions on shares of our common stock that could be acquired by such persons upon exercise of any such accelerated options that prevent the sale of such shares (other than to satisfy applicable withholding taxes) before such time as vesting would otherwise have taken place.
(2)Options held by Mr. Pignatelli were granted to him as part of his director compensation. See “Director Compensation” discussion under “Proposal One — Election of Directors”.Directors.”
 
(3)(2)On August 1, 2009,24, 2010, Mr. CapalloMulder resigned from the Company, at which time vesting of any unvested options ceased. Of hisMr. Mulder’s vested options as of thatsuch date, which totaled 63,332260,417 shares, 54,999150,002 shares expired on November 1, 200924, 2010 (three months following termination) as provided for byunder the terms of Mr. Capallo’sMulder’s option agreement andagreement.
(3)On July 6, 2010, Mr. Scott resigned from the option expiration dates included inCompany, at which time vesting of any unvested options ceased. No options were vested at the table have been adjusted to reflect this.time of his resignation.


25

 
Option Exercises and Stock Vested
 
The following table summarizes the option exercises by each of our named executive officers for the year ended December 31, 2009.2010. No shares of restricted stock have been granted to any of the named executive officers.
 
         
  Option Awards
  Number of Shares
 Value Realized
  Acquired on Exercise
 on Exercise
Name
 (#) ($)(1)
 
Federico Pignatelli  0  $0 
President and Former Interim Chief Executive Officer        
David M. Mulder  0   0 
Chief Executive Officer, Secretary, and Former
Chief Financial Officer		        
Jake P. St. Philip  0   0 
Former Chief Executive Officer        
Brett L. Scott  0   0 
Chief Financial Officer        
Frederick M. Capallo  8,333   11,083 
Former Interim Chief Financial Officer        
         
  Option Awards
  Number of Shares
 Value Realized
  Acquired on Exercise
 on Exercise
Name
 (#) ($)(1)
 
Federico Pignatelli  0  $0 
Chief Executive Officer and Chairman of the Board, Former President and Former Interim Chief Executive Officer        
Frederick D. Furry  0   0 
Chief Financial Officer        
David M. Mulder  110,415   39,895 
Former Chief Executive Officer, Secretary, and Former Chief Financial Officer        
Brett L. Scott  0   0 
Former Chief Financial Officer        
 
 
(1)Represents the excess over the exercise price of the closing market price of a share of our common stock on the date of exercise multiplied by the number of shares that were exercised.


20

 
Potential Payments upon Termination or Change in Control
 
Jake St. Philip.Federico Pignatelli.
Mr. Pignatelli was not a party to any severance or change in control agreement during 2010 and is not a party to such an agreement currently.
Frederick Furry.
Mr. Furry was not a party to any severance or change in control agreement during 2010 and is not a party to such an agreement currently.
David M. Mulder.
 
On January 2,April 30, 2008, we hired Mr. St. PhilipMulder as our Chief Financial Officer. On March 5, 2009, Mr. Mulder’s employment agreement was amended, and he was elevated to the position of Chief Executive Officer. UnderOfficer and appointed as a director. Mr. Mulder’s employment agreement, negotiated at the termstime of his employment agreement, ifhire in April 2008, also provided for certain severance and change of control benefits. If Mr. St. Philip’sMulder’s employment was terminated other than for cause or if he resigned for good reason, Mr. St. Philip would beMulder was entitled to receive severance benefits equal to:
 
 • one year of annual base salary;
• the full amount of his annual performance bonus target for the calendar yearsalary payable in which the effective date of termination occurs;twenty-four (24) equal semi-monthly installments; and
 
 • twelve months of paid COBRA premiums under our medical and dental benefit plans;
• a $3,000 lump sum cash payment; and
• payment of his premiums under our group life insurance, accidental death and dismemberment and disability benefit plans during the twelve month period following the effective date of termination.plans.
 
Furthermore, if his employment was terminated without cause or he resigned for good reason and such termination occursoccurred within twelve months of a change in control of us, Mr. St. Philip wouldMulder was be entitled to receive the severance benefits summarized above (except that the one year of annual base salary was to be paid in lump sum on the first business day that is at least 60 days after the effective date of termination) and Mr. St. Philip’sMulder’s stock option granted upon his hiring shallwould become fully vested and exercisable on the first business day that is at least 60 days after the effective date of termination.
 
“Good reason”Reason” for the purposes of Mr. St. Philip’sMulder’s employment agreement, generally means the occurrence of: (i) a change in Mr. St. Philip’sMulder’s position that materially reduces his salary, duties or level of responsibility; (ii) a requirement that Mr. St. PhilipMulder relocate his place of employment to more than 50 miles outside of his regular office location in Orange County, California; or (iii) a material breach of the employment agreement by the Company.
 
A “Change of Control” for the purposes of Mr. St. Philip’sMulder’s employment agreement means the occurrence of any of the following events: (i) an acquisition by any person of 50% or more of the voting power of our securities; or (ii) approval by our stockholders of: (x) a merger, consolidation, share exchange or


26

reorganization, unless our stockholders, immediately before such transaction own, directly or indirectly immediately following such transaction, at least 50% of the voting power of the outstanding securities of the corporation that is the successor in such transaction in substantially the same proportion as their ownership of the voting securities immediately before such merger, consolidation, share exchange or reorganization; (y) our complete liquidation or dissolution; or (z) an agreement for the sale or other disposition of all or substantially all of our assets.
 
Mr. St. Philip resigned from his position as Chief Executive Officer effective March 5, 2009 and was entitled to and paid severance benefits as noted above.
David M. Mulder.
On April 30, 2008, we hired Mr. Mulder as our Chief Financial Officer. On March 5, 2009, Mr. Mulder’s employment agreement was amended, and he was elevated to the position of Chief Executive Officer and appointed as a director.
Mr. Mulder’s employment agreement, negotiated at the time of his hire in April 2008, also provides for certain severance and change of control benefits. If Mr. Mulder’s employment is terminated other than for cause or if he resigns for good reason, Mr. Mulder will be entitled to receive severance benefits equal to:
• one year of annual base salary payable in twenty-four (24) equal semi-monthly installments; and
• twelve months of paid COBRA premiums under our medical and dental benefit plans.
Furthermore, if his employment is terminated without cause or he resigns for good reason and such termination occurs within twelve months of a change in control of us, Mr. Mulder will be entitled to receive the severance benefits summarized above (except that the one year of annual base salary will be paid in lump sum on the first business day that is at least 60 days after the effective date of termination) and Mr. Mulder’s stock granted upon his hiring shall become fully vested and exercisable on the first business day that is at least 60 days after the effective date of termination.
“Good reason” for the purposes of Mr. Mulder’s employment agreement has the same meaning as the use of the term in Mr. St. Philip’s employment agreement.
A “Change of Control” for the purposes of Mr. Mulder’s employment agreement has the same meaning as the use of the term in Mr. St. Philip’s employment agreement.
Frederick M. Capallo.
On June 27, 2007, we provided Mr. Capallo with a severance and change of control agreement. Under the terms of this agreement, if Mr. Capallo’s employment is terminated without cause or he resigns for good reason and such termination or resignation occurs within eighteen months of a change in control of us, Mr. Capallo will be entitled to receive 100% of his current annual base salary payable in lump sum, plus the full amount of his potential bonus for the then current year (if applicable), as well as twelve months of paid COBRA premiums under our medical and dental benefit plans. In addition, to the extent permissible by law and in compliance with plan rules, we will pay Mr. Capallo’s premiums under our group life insurance, accidental death and dismemberment, and disability benefit plans during the twelve month period following the effective date of termination or resignation. Mr. Capallo’s unvested stock options would become fully vested and exercisable on the first business day that is at least 60 days after the effective date of termination. A “change of control” for the purposes of the severance and change of control agreement has the same meaning as the use of the term in Mr. St. Philip’s employment agreement. Mr. Capallo’s resignation effective August 1, 2009 did not entitle him to benefits under this agreement.


27

Brett L. ScottScott.
 
On July 14, 2009, we hired Mr. Scott as our Chief Financial Officer. Under the terms of his employment agreement, if Mr. Scott’s employment was terminated other than for cause or if he resignsresigned for good reason, Mr. Scott would bewas entitled to receive severance benefits equal to:
 
 • six months’ of annual base salary payable in twelve (12) equal semi-monthly installments; and
 
 • six months of paid COBRA premiums under our medical and dental benefit plans.
 
Furthermore, if his employment is terminated without cause or he resignsresigned for good reason and such termination occurs within twelve months of a change in control of us, Mr. Scott will bewas entitled to receive the severance benefits summarized above (except that the six months’ worth of annual base salary will be paid in lump sum on the first business day that is at least 60 days after the effective date of termination) and Mr. Scott’s stock granted upon


21

his hiring shallwould become fully vested and exercisable on the first business day that is at least 60 days after the effective date of termination.
 
“Good reason”Reason” for the purposes of Mr. Scott’s employment agreement has the same meaning as the use of the term in Mr. St. Philip’sMulder’s employment agreement.
 
A “Change of Control” for the purposes of Mr. Scott’s employment agreement has the same meaning as the use of the term in Mr. St. Philip’sMulder’s employment agreement.
 
In accordance with the requirements of the rules of the SEC, the following table presents our reasonable estimate of the benefits payable to Messrs. Mulder and Scott assuming: (a) an involuntary termination without cause or a resignation for good reason occurred on December 31, 2009, the last business day of the 2009 fiscal year; and (b) a change in control and involuntary termination of employment other than for cause or a resignation for good reason occurred on December 31, 2009, the last business day of the 2009 fiscal year. Also excluded are benefits provided to all employees. As discussed under “Executive Compensation — Our Executive Officers,” Mr. St. Philip resigned from the Company effective March 5, 2009 and Mr. Capallo resigned from the Company effective August 1, 2009 and are therefore not included in the information presented in the following table.
                             
  Termination
  
  Without Cause
  
  or Resignation for
 Termination Without Cause or Resignation for Good Reason
  Good Reason Within 12 Months of a Change in Control
      Accelerated
        
      Equity
        
Name Total(1) Salary Awards Bonus Car Allowance Benefits Total(2)(3)
 
David M. Mulder $271,183  $250,000  $0  $0  $0  $21,183  $271,183 
Brett L. Scott  110,246   102,500   48,400         0         0   7,746   158,646 
(1)Represents salary and COBRA premiums due under terms stated above.
(2)Represents the sum of (a) each executive’s entitled portion of their then current annual salary, (b) the value of the acceleration of each executive’s unvested stock options, granted on their hire date, based on the spread between the closing price of our common stock $1.91 on December 31, 2009 and the stock options’ exercise prices, and (c) COBRA premiums, based on current rates for medical, dental and vision insurance for the period stated in their respective agreements.
(3)Excludes the value to Messrs. Mulder’s, and Scott’s continued right to indemnification by us. Executives are indemnified by us and entitled to continued coverage under our directors and officers liability insurance policy (if applicable).
Federico Pignatelli.
Mr. Pignatelli was not a party to any severance or change in control agreement during 2009 or currently.


28

Equity Compensation Plan Information
 
Our 2002 Stock Incentive Plan is designed to attract and retain the services of individuals essential to its long-term growth and success. We also formerly maintained the 1990 Stock Option Plan and the 1993 Stock Option Plan. The 1990 Stock Option Plan and the 1993 Stock Option Plan have terminated pursuant to their terms; however, various optionterms and no grants under those plans remain outstanding.
 
The following table summarizes information as of December 31, 20092010 with respect to the shares of our common stock that may be issued upon exercise of options, warrants or rights under our existing equity compensation plans.
 
                        
 Number of
      Number of
     
 Securities to be
   Number of
  Securities to be
   Number of
 
 Issued Upon
 Weighted Average
 Securities
  Issued Upon
 Weighted Average
 Securities
 
 Exercise of
 Exercise Price of
 Remaining Available
  Exercise of
 Exercise Price of
 Remaining Available
 
 Outstanding
 Outstanding
 for Future Issuance
  Outstanding
 Outstanding
 for Future Issuance
 
 Options, Warrants
 Options, Warrants
 Under Equity
  Options, Warrants
 Options, Warrants
 Under Equity
 
Plan Category
 and Rights and Rights Compensation Plans  and Rights and Rights Compensation Plans 
Equity Compensation Plans Approved by Stockholders  3,646,677  $4.50   924,352   4,130,140  $3.60   192,977 
Equity Compensation Plans Not Approved by Stockholders(1)  3,000   2.69   0 
              
Total  3,649,677  $4.50   924,352   4,130,140  $3.60   192,977 
              
(1)The 1990 Stock Option Plan was implemented by our Board on December 15, 1990. The 1990 Stock Option Plan is a non-stockholder-approved plan under which options were authorized to be granted to directors, officers or employees. Our Board authorized 150,000 shares of our common stock for issuance under the 1990 Stock Option Plan. Options under this plan were granted with an exercise price per share equal to the fair market value per share of our common stock on the grant date and vested in installments during the optionee’s period of service with us. The plan administrator (either our Board or a Board committee) may cause options to vest on an accelerated basis in the event we are acquired and those options are not assumed or replaced by the acquiring entity. Each option has a maximum term (not to exceed 10 years) set by the plan administrator at the time of grant, subject to earlier termination following the optionee’s termination.


29

 
COMPENSATION COMMITTEE REPORT
 
The Compensation Committee has reviewed and discussed the Compensation Discussion and Analysis with management, and based on its review and discussions, the Compensation Committee recommended to the Board of Directors that the Compensation Discussion and Analysis set forth above be included in our 20092010 Annual Report onForm 10-K and in this Proxy Statement for the 20102011 Annual Meeting of Stockholders.
 
Submitted by the Compensation Committee of our Board:
 
James R. Largent,Alex K. Arrow, Chairman
Neil
Norman J. Laird
Robert M. Anderton
George V. d’Arbeloff
Daniel S. DurrieNemoy
Gregory E. Lichtwardt
 
Date: April 2, 20101, 2011


3022

PROPOSAL TWO
APPROVAL OF AMENDMENT TO THE
BIOLASE TECHNOLOGY, INC. 2002 STOCK INCENTIVE PLAN
General
We are asking our stockholders to approve the amendment to our 2002 Stock Incentive Plan (the “Stock Incentive Plan”) which was approved by our Board of Directors on February 17, 2011, subject to stockholder approval. The effect of the amendment is to extend the term of the Stock Incentive Plan through May 5, 2016, and to increase the number of shares of our common stock available for issuance under the Stock Incentive Plan by an additional 1,000,000 shares.
As of March 15, 2011, options to acquire 77,493 shares of our common stock are available for issuance under the Stock Incentive Plan. The number of shares of our common stock is being increased with the amendment in order to provide for awards in future years. We intend to award grants to directors, officers, and employees to provide incentives to such individuals to focus on our critical long-range objectives and to encourage the attraction and retention of such individuals.
The Stock Incentive Plan was originally adopted by our stockholders in May 23, 2002 and will expire on April 16, 2012 unless it is extended. If our stockholders approve the amendment of the Stock Incentive Plan, it will take effect immediately and the Stock Incentive Plan will continue through May 23, 2016, when it will expire. The amendment of the Stock Incentive Plan ensures that we can continue to grant equity awards to our directors, officers, and employees, which are a critical part of the compensation package offered to new, existing, and key employees and are an important tool in our ability to attract and retain talented personnel. Accordingly, we are proposing to amend and restate the Stock Incentive Plan to extend the availability of this plan for these purposes for an additional four years.
The principal features of the Stock Incentive Plan are summarized below; however the summary is qualified in its entirety by reference to the Stock Incentive Plan itself, which is attached to this proxy statement as Appendix A. We encourage you to please read the Stock Incentive Plan carefully.
Background of the Stock Incentive Plan
The Stock Incentive Plan was approved by our stockholders on May 23, 2002. The Stock Incentive Plan originally reserved 3,000,000 shares of our common stock for issuance as stock awards or upon exercise of options granted pursuant to the Stock Incentive Plan and included options outstanding under the predecessor 1998 Stock Option Plan which were transferred to the Stock Incentive Plan. The Stock Incentive Plan was amended in 2004 to increase the shares reserved by an additional 1,000,000 shares, bringing the total shares of our common stock reserved for issuance to 4,000,000. In 2005, the Stock Incentive Plan was amended to increase the shares reserved by an additional 950,000 shares, bringing the current total shares of our common stock reserved for issuance to 4,950,000. In May 2007, the Stock Incentive Plan was amended to increase the shares reserved by an additional 1,000,000 shares, bringing the current total shares of our common stock reserved for issuance to 5,950,000.
Our Board of Directors further amended the Stock Incentive Plan in 2005 to restrict our ability to re-price outstanding stock options or to cancel outstanding stock options in exchange for grants of stock options with a lower exercise price without stockholder approval. Our Board also amended the Stock Incentive Plan to provide that (i) the minimum exercise price for stock options would be the fair market value of our common stock on the date of grant, (ii) to the extent otherwise required, stockholder approval would be necessary to increase the number of shares reserved under the Stock Incentive Plan, and (iii) any shares issued under the stock issuance program for a purchase price of less than fair market value would generally provide for a minimum of three-year vesting, subject to continued employment or service, or one-year vesting in the case of performance-based awards. In February 2007, our Board of Directors further amended the Stock Incentive Plan to reduce the number of options granted to non-employee directors under the Automatic Option Grant Program, which number of options was increased in May 2010.


23

The Stock Incentive Plan is designed to serve as a comprehensive equity incentive program to attract and retain the services of individuals essential to our long-term growth and financial success. Accordingly, our officers and other employees, the non-employee directors and independent contractors have the opportunity to acquire a meaningful equity interest in us through their participation in the Stock Incentive Plan.
Shares Subject to the Stock Incentive Plan
As of March 15, 2011, options awarded pursuant to the Stock Incentive Plan for 3,914,812 shares of our common stock are outstanding and 77,493 shares remain available for issuance. If this proposal is approved, then approximately 1,077,493 shares would be available for issuance under the Stock Incentive Plan. The awarded options were issued at the closing sale price of our common stock on the date of grant. Options expire following termination of the optionee’s service between 90 days and 12 months following termination service and have an exercise term not to exceed 10 years from the date of grant. The market value of the securities underlying the options as of March 15, 2011 was $4.93 per share of our common stock. If the entire amount of 3,992,305 shares that have been previously authorized under the Stock Incentive Plan were issued thereunder, such shares would constitute 12.7% of our common stock outstanding as of March 15, 2011. We plan to file anS-8 Registration Statement to register the additional 1,000,000 shares being reserved under the Stock Incentive Plan.
Description of the Stock Incentive Plan
The Stock Incentive Plan consists of three equity incentive programs: (1) the discretionary option grant program, (2) the stock issuance program, and (3) the automatic option grant program for our non-employee directors. The principal features of each program are described below.
Both our Board of Directors and the Compensation Committee have the authority to act as the Stock Incentive Plan administrator of the discretionary option grant and stock issuance programs with respect to option grants and stock issuances made to our executive officers and non-employee directors and also have the authority to make option grants and stock issuances under those programs to all other eligible individuals. Our Board of Directors may at any time appoint a secondary committee comprised of one or more directors to have concurrent authority to make option grants and stock issuances under those two programs to individuals other than executive officers and non-employee directors. All grants under that program will be made in strict compliance with the express provisions of such program. Options granted under the Stock Incentive Plan may be “incentive stock options” as defined in Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”), or non-qualified options. The Stock Incentive Plan prohibits the re-pricing of outstanding stock options or the exchange of outstanding stock options for stock options with a lower exercise price, unless stockholder approval is obtained, or if in connection with a change of control of us or a change in our common stock (such as the result of a merger, stock split, stock dividend or recapitalization of us).
Discretionary Option Grant Program
The plan administrator has complete discretion under the discretionary option grant program to determine which eligible individuals are to receive option grants, the time or times when those grants are to be made, the number of shares subject to each such grant, the status of any granted option as either an incentive stock option or a non-statutory option under the federal tax laws, the vesting schedule (if any) to be in effect for the option grant and the maximum term for which any granted option is to remain outstanding.
Each granted option will have an exercise price per share determined by the plan administrator, which will not be less than the fair market value of our common stock on the date of grant. No granted option will have a term in excess of ten years. The shares subject to each option will generally vest in one or more installments over a specified period of service measured from the grant date.
Stock Issuance Program
Shares may be issued under the stock issuance program at a price per share determined by the plan administrator, payable in cash or for past services rendered to us. Shares may also be issued as a bonus for past services without any cash outlay required of the recipient. Shares of our common stock may also be issued under the


24

program pursuant to share right awards that entitle the recipients to receive those shares upon the attainment of designated performance goals. The plan administrator has complete discretion under the program to determine which eligible individuals are to receive such stock issuances or share right awards, the time or times when those issuances or awards are to be made, and the number of shares subject to each such issuance or award. The plan administrator has discretion over the vesting schedule for shares issued under the stock issuance program. Shares issued at less than fair market value will generally vest over a three-year period, with accelerated vesting permitted only upon a change of control or in other limited circumstances (e.g., death or disability of the recipient, termination without cause or pursuant to a severance agreement or plan under which the recipient provides consideration for accelerated vesting). Shares may also be issued upon attainment of designated performance goals or specified service requirements.
Automatic Option Grant Program
Effective as of the 2007 annual meeting, under the automatic option grant program, eligible non-employee members of our Board of Directors have received a series of option grants over their period of Board service. The automatic option grant program provides that each individual who is elected to our Board as a non-employee director, at an annual meeting of stockholders or at a special meeting at which directors were elected, automatically is granted, on the date of such election, a non-statutory option to purchase 20,000 shares of our common stock. Each option vests over one year in equal quarterly increments, with the first vesting date occurring three months after the date of grant. If a non-employee director becomes a member of our Board of Directors for the first time on a date other than the date of a meeting at which all directors were elected, he or she will automatically be granted a non-statutory option to purchase the number of shares equal to the sum of (a) 20,000 and (b) the product of (i) 1,250 and (ii) one plus the number of whole calendar months that will have elapsed between the date of appointment to the Board of Directors and the anticipated date of the next annual meeting of stockholders. The options will vest over one year in equal quarterly increments, with the first vesting date occurring three months after the date of grant.
Exercise Provisions, Amendment and Termination of the Stock Incentive Plan
Upon cessation of service, the optionee will have a limited period of time in which to exercise his or her outstanding options to the extent exercisable for vested shares. The plan administrator has complete discretion to extend the period following the optionee’s cessation of service during which his or her outstanding options may be exercised. Such discretion may be exercised at any time while the options remain outstanding, whether before or after the optionee’s actual cessation of service.
Our Board of Directors may amend or modify the Stock Incentive Plan at any time, subject to any required stockholder approval to increase the number of shares reserved thereunder or pursuant to applicable laws and regulations and the NASDAQ Rules. In addition, stockholder approval is required to modify the eligibility requirements for participation in the Stock Incentive Plan.
Certain Federal Income Tax Consequences
No taxable income is recognized by the optionee at the time of the grant of an Incentive Stock Option, and no taxable income is recognized for regular tax purposes at the time the option is exercised; however, the excess of the fair market value of our common stock received over the option price is an “item of adjustment” for alternative minimum tax purposes. The optionee will recognize taxable income in the year in which the purchased shares are sold or otherwise made the subject of a taxable disposition. For federal tax purposes, dispositions are divided into two categories: qualifying and disqualifying. A qualifying disposition occurs if the sale or other disposition is made more than two years after the date the option for the shares involved in such sale or disposition is granted and more than one year after the date the shares are transferred upon exercise. If the sale or disposition occurs before these two periods are satisfied, then a disqualifying disposition will result.
Upon a qualifying disposition, the optionee will recognize long-term capital gain in an amount equal to the excess of the amount realized upon the sale or other disposition of the purchased shares over the exercise price paid for the shares. If there is a disqualifying disposition of the shares, then the excess of the fair market value of those shares on the exercise date over the exercise price paid for the shares will be taxable as ordinary income to the


25

optionee. Any additional gain or loss recognized upon the disposition will be recognized as a capital gain or loss by the optionee.
We will not be entitled to any income tax deduction if the optionee makes a qualifying disposition of the shares. If the optionee makes a disqualifying disposition of the purchased shares, then we will be entitled to an income tax deduction, for the taxable year in which such disposition occurs, equal to the ordinary income recognized by the optionee.
All other options granted under the Stock Incentive Plan will be non-statutory stock options and will not qualify for any special tax benefits to the optionee. An optionee will not recognize any taxable income at the time he or she is granted a non-statutory stock option. However, upon exercise of the non-statutory stock option, the optionee will recognize ordinary income for federal income tax purposes in an amount generally measured as the excess of the then fair market value of each share over its exercise price. Upon an optionee’s resale of such shares, any difference between the sale price and the fair market value of such shares on the date of exercise will be treated as capital gain or loss and will generally qualify for long term capital gain or loss treatment if the shares have been held for more than one year. The Code provides for reduced tax rates for long term capital gains based on the taxpayer’s income and the length of the taxpayer’s holding period.
The recipient of a restricted share award will generally recognize ordinary compensation income when such shares are no longer subject to a substantial risk of forfeiture, based on the excess of the value of the shares at that time over the price, if any, paid for such shares. However, if the recipient makes a timely election under the Code to be subject to tax upon the receipt of the shares, the recipient will recognize ordinary compensation income at that time equal to the fair market value of the shares over the price paid, if any, and no further ordinary compensation income will be recognized when the shares vest.
Except as otherwise described above with respect to incentive stock options, we generally will be entitled to a deduction when and for the same amount that the recipient recognizes ordinary income, subject to the limitations of Section 162(m) of the Code with respect to compensation paid to certain “covered employees”. Under Section 162(m), income tax deductions of publicly-held corporations may be limited to the extent total compensation (including base salary, annual bonus, stock option exercises and non-qualified benefits paid) for certain executive officers exceeds $1 million in any one year. The Section 162(m) deduction limit, however, does not apply to certain “performance-based compensation” as provided for by the Code and established by an independent compensation committee. In particular, stock options will satisfy the “performance-based compensation” exception if the awards are made by a qualifying compensation committee, the underlying plan sets the maximum number of shares that can be granted to any person within a specified period and the compensation is based solely on an increase in the stock price after the grant date (i.e., the exercise price or base price is greater than or equal to the fair market value of the stock subject to the award on the grant date).
The foregoing does not purport to be a complete summary of the federal income tax considerations that may be relevant to holders of options or restricted shares, or to us. It also does not reflect provisions of the income tax laws of any municipality, state or foreign country in which an optionee may reside, nor does it reflect the tax consequences of an optionee’s death.
Recommendation of the Board of Directors
THE BOARD UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS VOTE FOR THE ADOPTION OF THE AMENDMENT TO THE 2002 STOCK INCENTIVE PLAN.


26

PROPOSAL THREE
RATIFICATION OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The firm of BDO USA, LLP was selected by the Audit Committee to act as our independent registered public accounting firm for the fiscal year ending December 31, 2011. BDO USA, LLP was initially engaged by us on August 8, 2005 and served in that capacity through December 31, 2010. Our Board is asking the stockholders to ratify BDO USA, LLP’s appointment. Stockholder ratification of such selection is not required by our bylaws or other applicable legal requirement. However, our Board is submitting the selection of BDO USA, LLP to our stockholders for ratification as a matter of good corporate governance. In the event our stockholders fail to ratify the selection, the Audit Committee will reconsider whether or not to continue to retain BDO USA, LLP for the 2011 fiscal year. Even if the selection is ratified, the Audit Committee in its discretion may consider the appointment of a different independent registered public accounting firm at any time during the year if our Audit Committee believes that such a change would be in our and our stockholders’ best interests.
A representative of BDO USA, LLP is expected to be present at our annual meeting, will have the opportunity to make a statement if he or she desires to do so, and will be available to respond to appropriate questions.
Recommendation of Our Board
THE BOARD UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS VOTE “FOR” THE RATIFICATION OF THE SELECTION OF BDO USA, LLP TO SERVE AS OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE YEAR ENDING DECEMBER 31, 2011.


27

PRINCIPAL ACCOUNTANT FEES AND SERVICES
The following table presents fees billed and billable to us for professional services rendered by BDO USA, LLP for the fiscal years ended December 31, 2010 and 2009.
         
  Fiscal Year Ended
  Fiscal Year Ended
 
  December 31, 2010  December 31, 2009 
 
Audit Fees $256,585  $511,118 
Audit-Related Fees  0   0 
Tax Fees  0   0 
All Other Fees(1)  14,862   0 
         
Total $271,447  $511,118 
         
(1)Fees paid in conjunction with services performed on our registration statement onForm S-3 and related Prospectus Supplement filings with the SEC.
Determination of Independence
In considering the nature of the services provided by our independent registered public accounting firm, the Audit Committee determined that such services are compatible with the provision of independent audit services. The Audit Committee discussed these services with our independent registered public accounting firm and our management to determine that they are permitted under the rules and regulations concerning auditor independence promulgated by the SEC to implement the Sarbanes-Oxley Act of 2002, as well as the American Institute of Certified Public Accountants.
Pre-Approval Policy
According to policies adopted by the Audit Committee and ratified by our Board, to ensure compliance with the SEC’s rules regarding auditor independence, all audit and non-audit services to be provided by our independent registered public accounting firm must be pre-approved by the Audit Committee. This policy generally provides that we will not engage any independent registered public accounting firm to render audit or non-audit services unless the service is specifically approved in advance by the Audit Committee.
From time to time, the Audit Committee may pre-approve specified types of services that are expected to be provided to us by our independent registered public accounting firm during the next 12 months. Any such pre-approval will be detailed as to the particular service or type of services to be provided and is also generally subject to a maximum dollar amount. In providing any pre-approval, the Audit Committee considers whether the services to be approved are consistent with the SEC’s rules on auditor independence.
All fees paid to BDO USA, LLP were pursuant to engagements pre-approved by the Audit Committee, and none of those engagements made use of the exception to pre-approval contained inRegulation S-X,Rule 2-01(c)(7)(i)(C).


28

 
AUDIT COMMITTEE REPORT
 
The Audit Committee oversees our independent registered public accounting firm and assists our Board in fulfilling its oversight responsibilities on matters relating to the integrity of our financial statements, our compliance with legal and regulatory requirements and the independent registered public accounting firm’s qualifications and independence by meeting regularly with the independent registered public accounting firm and financial management personnel. Management is responsible for the preparation, presentation and integrity of our financial statements; establishing and maintaining disclosure controls and procedures (as defined in Exchange ActRule 13a-15(f)); evaluating the effectiveness of disclosure controls and procedures; and evaluating any change in internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, internal control over financial reporting.
 
In fulfilling its oversight responsibilities, the Audit Committee reviewed and discussed our financial statements as of and for the fiscal year ended December 31, 2009,2010, with management and BDO Seidman,USA, LLP, our independent registered public accounting firm. The Audit Committee also discussed with BDO Seidman,USA, LLP the matters required to be discussed by Statement on Auditing Standards No. 61, Communications with Audit Committees, as amended. This included a discussion of the independent registered public accounting firm’s judgments as to the quality, not just the acceptability, of our accounting principles and such other matters that generally accepted auditing standards require to be discussed with the Audit Committee. The Audit Committee also received the written disclosures and the letter from BDO Seidman,USA, LLP required by Public Company Accounting Oversight Board Rule 3526, Independence Discussion with Audit Committees, as amended, and the Audit Committee discussed the independence of BDO Seidman,USA, LLP with that firm.
 
Based on the Audit Committee’s review and discussions noted above, the Audit Committee recommended to our Board, and our Board approved, that the audited financial statements be included in our Annual Report onForm 10-K for the fiscal year ended December 31, 20092010 for filing with the SEC. The Audit Committee also approved the selection of BDO Seidman,USA, LLP as our independent registered public accounting firm for 2009.2010.
 
The Audit Committee and our Board have also recommended, subject to stockholder ratification, the selection of BDO Seidman,USA, LLP as our independent registered public accounting firm for the 20102011 fiscal year.
 
Submitted by the Audit Committee of our Board:
 
NeilAlex K. Arrow, Chairman
Norman J. Laird, Chairman
George V. d’Arbeloff
Robert M. Anderton
Nemoy
Gregory D. WallerE. Lichtwardt
 
Date: April 2, 20101, 2011


31

Incorporation by Reference
 
Notwithstanding anything to the contrary set forth in any of our previous filings under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, which might incorporate our future filings under those statutes, neither the preceding Compensation Committee Report nor the Audit Committee Report will be incorporated by reference into any of those prior filings, nor will any such report be incorporated by reference into any of our future filings under those statutes. In addition, information on our website, other than our Proxy Statement and form of Proxy, is not part of the proxy soliciting material and is not incorporated herein by reference.
 
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
 
The charter of the Audit Committee requires that it review any insider and related party transactions. In connection with this requirement, all related party transactions (transactions involving our directors, executive officers or any member of their immediate family, or holder of more than five percent (5%) of our outstanding common stock) are disclosed and reviewed by our Audit Committee and our Board of Directors at leastleasttocpage annually. In addition, transactions involving our directors are disclosed and reviewed by the Nominating and


29

Corporate Governance Committee in its assessment of our directors’ independence requirements. To the extent such transactions are ongoing business relationships, the transactions are disclosed and, as applicable, reviewed annually.
 
There has not been any transaction or series of related transactions to which we were a participant in the 20092010 fiscal year or are currently a participant involving an amount in excess of $120,000 and in which any director, executive officer or any member of their immediate family, or holder of more than five percent (5%) of our outstanding common stock, had or will have a direct or indirect material interest.


30

 
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
 
The following table sets forth the beneficial ownership of shares of our common stock as of March 17, 201015, 2011 by (i) any stockholder known to us to beneficially own five percent (5%) or more of our outstanding common stock, (ii) each director and nominee for director, (iii) each named executive officer, and (iv) all current directors and executive officers as a group. Options shown in the table were granted pursuant to the 2002 Stock Option Plan and 1993 Stock OptionIncentive Plan and represent the shares issuable pursuant to outstanding options exercisable within sixty (60) days of March 17, 2010.15, 2011. Except as indicated in the footnotes to this table, the persons or entities named in the table have sole voting and investment power with respect to all shares of our common stock shown as beneficially owned by them, subject to community property laws, where applicable. Percentage ownership is calculated pursuant to SECRule 13d-3(d)(1) and is based on


32

24,385,903 27,479,743 shares of our common stock outstanding at March 17, 2010,15, 2011, and excludes shares reserved for 81,03750,000 unexercised warrants.
 
             
    Number of Shares
  
    Underlying Options
 Percentage of
  Shares
 Exercisable Within
 Shares
  Beneficially
 60 Days of
 Beneficially
5% Beneficial Owners, Directors and Named Executive Officers
 Owned March 17, 2010 Owned
 
Robert M. Anderton  1,000   146,250   *
George V. d’Arbeloff  86,517   306,250   1.6%
Daniel S. Durrie  58,736   80,000   *
Neil J. Laird  25,000   103,750   *
James R. Largent  10,000   75,000   *
Gregory D. Waller  0   11,875   *
David M. Mulder  0   226,043   *
Federico Pignatelli  1,030,250   315,000   5.5%
Brett L. Scott  0   0   *
All current directors and executive officers as a group (9 persons)  1,211,503   1,264,168   9.7%
             
     Number of Shares
    
     Underlying Options
  Percentage of
 
  Shares
  Exercisable Within
  Shares
 
  Beneficially
  60 Days of
  Beneficially
 
5% Beneficial Owners
 Owned  March 15, 2011  Owned 
 
Buenavista Market, Inc.(1)   1,582,150   0   5.8%
8 Aquilino de la Guardia Str.
Panama, Republic of Panama		            
             
             
Directors and Named Executive Officers
         
 
Federico Pignatelli  1,197,750   173,750   5.0%
Alexander K. Arrow  3,000   66,875   * 
Gregory E. Lichtwardt  0   63,125   * 
Norman J Nemoy  0   24,875   * 
Frederick D. Furry  0   0   * 
David M. Mulder  0   0   * 
Brett L. Scott  0   0   * 
All current directors and executive officers as a group (7 persons)  1,200,750   328,625   5.5%
 
 
*Represents less than 1%.
(1)This information is based solely upon a Schedule 13D dated May 26, 2010 and filed with the SEC.
 
Section 16(a) Beneficial Ownership Reporting ComplianceSTOCKHOLDER PROPOSALS
 
The membersStockholder proposals to be considered for inclusion in the proxy statement and form of proxy relating to our next annual meeting of stockholders must be received no later than December 3, 2011. If we change the date of our Board, the executive officers and beneficial holdersnext annual meeting of stockholders by more than ten percent30 days from the date of the outstanding sharesprevious year’s annual meeting of stockholders, then the deadline is a reasonable time before we begin to print and send our common stock are subject toproxy materials. All such proposals must comply with the reporting requirements of Section 16(a)Rule 14a-8 of Regulation 14A of the Securities Exchange Act of 1934, as amended which requires themsets forth specific requirements and limitations applicable to file reports with respectnominations and proposals at annual meetings of stockholders.
All stockholder proposals, notices and requests should be made in writing and sent to their ownershipthe attention of our securities. Based solely upon the copies of Section 16(a) reports which we received from such persons for their 2009 fiscal year transactions in our common stock and their common stock holdings, we believe that all reporting requirements under Section 16(a) for such fiscal year were met in a timely manner by our directors, executive officers and greater than ten percent beneficial owners.Corporate Secretary, BIOLASE Technology, Inc., 4 Cromwell, Irvine, California 92618.
 
Annual ReportANNUAL REPORT
 
A copy of the 20092010 Annual Report onForm 10-K, which includes the financial statements, but excludesForm 10-K exhibits, is being mailed concurrently with this proxy statement to all stockholders entitled to notice of and to vote at our annual meeting.


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By OrderOTHER MATTERS
We know of no other matters that will be presented for consideration at our annual meeting. If any other matters properly come before our annual meeting, the individuals named in the accompanying proxy shall vote on such matters in accordance with their best judgment and in the discretion of the proxy holders.
BY ORDER OF THE BOARD OF DIRECTORS
Federico Pignatelli
Chairman of the Board and Chief Executive Officer
 
-s-David M. Mulder
David M. Mulder
Secretary
Dated:Date: April 2, 20101, 2011


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(PROXY CARD)APPENDIX A
BIOLASE TECHNOLOGY, INC.

2002 STOCK INCENTIVE PLAN
(As amended by the Board of Directors through March 15, 2011
and approved by stockholders on May 5, 2011)
ARTICLE ONE
GENERAL PROVISIONS
. MMMMMMMMMMMM MMMMMMMMM
I.  PURPOSE OF THE PLAN
The Plan is intended to promote the interests of the Corporation by providing eligible persons who are employed by or serve the Corporation or any Parent or Subsidiary with the opportunity to acquire a proprietary interest, or otherwise increase their proprietary interest, in the Corporation as an incentive for them to remain in such service.
Capitalized terms shall have the meanings assigned to such terms in the attached Appendix.
II.  STRUCTURE OF THE PLAN
A. The Plan shall be divided into three separate equity incentive programs:
1. the Discretionary Option Grant Program under which eligible persons may, at the discretion of the Plan Administrator, be granted options to purchase shares of Common Stock;
2. the Stock Issuance Program under which eligible persons may, at the discretion of the Plan Administrator, be issued shares of Common Stock directly, either through the immediate purchase of such shares or as a bonus for services rendered the Corporation (or any Parent or Subsidiary); and
3. the Automatic Option Grant Program under which eligible non-Employee directors shall automatically receive option grants at designated intervals over their period of continued Board service.
B. The provisions of Articles One and Five shall apply to all equity programs under the Plan and shall govern the interests of all persons under the Plan.
III. ADMINISTRATION OF THE PLAN
A. Administration of the Automatic Option Grant Program shall be self-executing in accordance with the terms of that program, and no Plan Administrator shall exercise any discretionary functions with respect to any option grants made under that program.
B. The Primary Committee and the Board shall have concurrent authority to administer the Discretionary Option Grant and Stock Issuance Programs with respect to Section 16 Insiders. (However, grants made to Section 16 Insiders by the entire Board willnotbe exempt from the million-dollar compensation deduction limitation of Code Section 162(m).) Administration of the Discretionary Option Grant and Stock Issuance Programs with respect to all other persons eligible to participate in those programs may, at the Board’s discretion, be vested in the Primary Committee or a Secondary Committee, or the Board may retain the power to administer those programs with respect to all such persons; provided, that a Secondary Committee which includes any Employee is not authorized to make grants to non-Employee directors. However, any discretionary option grants or stock issuances for members of the Primary Committee should be authorized by a disinterested majority of the Board.
C. Members of the Primary Committee or any Secondary Committee shall serve for such period of time as the Board may determine and may be removed by the Board at any time. The Board may also at any time terminate the functions of any Secondary Committee and reassume all powers and authority previously delegated to such committee.


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D. Service on the Primary Committee or the Secondary Committee shall constitute service as a director, and members of each such committee shall accordingly be entitled to full indemnification and reimbursement as directors for their service on such committee. No member of the Primary Committee or the Secondary Committee shall be liable for any act or omission made in good faith with respect to the Plan or any option grants or stock issuances under the Plan.
E. Each Plan Administrator shall, within the scope of its administrative functions under the Plan, have full power and authority (subject to the provisions of the Plan) to establish such rules and procedures as it may deem appropriate for proper administration of the Discretionary Option Grant and Stock Issuance Programs and to make such determinations under, and issue such interpretations of, the provisions of those programs and any outstanding options or stock issuances thereunder as it may deem necessary or advisable. Decisions of the Plan Administrator within the scope of its administrative functions under the Plan shall be binding on all parties who have an interest in the Discretionary Option Grant and Stock Issuance Programs under its jurisdiction or any option or stock issuance thereunder.
IV.  ELIGIBILITY
A. The persons eligible to participate in the Discretionary Option Grant and Stock Issuance Programs are as follows:
1. Employees,
2. non-Employee members of the Board or the board of directors of any Parent or Subsidiary, and
3. independent contractors who provide services to the Corporation (or any Parent or Subsidiary).
B. Only non-Employee directors shall be eligible to participate in the Automatic Option Grant Program. A non-Employee director who has previously been in the employ of the Corporation (or any Parent or Subsidiary) shall not be eligible to receive an initial option grant under the Automatic Option Grant Program at the time he or she first becomes a non-Employee director, but shall be eligible to receive annual option grants under the Automatic Option Grant Program while he or she continues to serve as a non-Employee director.
V.  STOCK SUBJECT TO THE PLAN
A. The stock issuable under the Plan shall be shares of authorized but unissued or reacquired Common Stock, including shares repurchased by the Corporation on the open market. The maximum number of shares of Common Stock which may be issued over the term of the Plan shall not exceed 6,950,000 shares. Such authorized share reserve is comprised of (1) the initial share reserve for the Plan of 1,000,000 shares authorized by the Board on April 16, 2002 and approved by the stockholders on May 23, 2002, (2) the number of shares that remained available for issuance, as of May 23, 2002, under the Predecessor Plan as last approved by the Corporation’s stockholders, including the shares subject to outstanding options under the Predecessor Plan, (3) an additional increase of 1,000,000 shares of Common Stock authorized by the Board on April 28, 2004 and approved by the stockholders on May 26, 2004, (4) an additional increase of 950,000 shares of Common Stock authorized by the Board on September 19, 2005 and approved by the stockholders on November 15, 2005, (5) an additional 1,000,000 shares of Common Stock authorized by the Board on February 28, 2007 and approved by the stockholders on May 16, 2007, and (6) an additional 1,000,000 shares of Common Stock authorized by the Board on February 17, 2011 and approved by the stockholders on May 5, 2011.
B. No one person participating in the Plan may receive stock options and direct stock issuances for more than 1,500,000 shares of Common Stock pursuant to the Plan in the aggregate per calendar year. No more than 200,000 shares of Common Stock may be granted under Article Three hereof.
C. Shares of Common Stock subject to outstanding options (including options transferred to this Plan from the Predecessor Plan) shall be available for subsequent issuance under the Plan to the extent (1) those options expire or terminate for any reason prior to exercise in full or (2) the options are cancelled in accordance with the cancellation/regrant provisions of the Plan. Unvested shares issued under the Plan and subsequently cancelled or repurchased by the Corporation, at a price per share not greater than the original issue price paid per share, pursuant to the


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Corporation’s repurchase rights under the Plan shall be added back to the number of shares of Common Stock reserved for issuance under the Plan and shall accordingly be available for reissuance through one or more subsequent option grants or direct stock issuances under the Plan. However, should the exercise price of an option under the Plan be paid with shares of Common Stock or should shares of Common Stock otherwise issuable under the Plan be withheld by the Corporation in satisfaction of the withholding taxes incurred in connection with the exercise of an option or the vesting of a stock issuance under the Plan, then the number of shares of Common Stock available for issuance under the Plan shall be reduced by the gross number of shares for which the option is exercised or which vest under the stock issuance, and not by the net number of shares of Common Stock issued to the holder of such option or stock issuance.
D. If any change is made to the Common Stock by reason of any stock split, stock dividend, recapitalization, combination of shares, exchange of shares or other change affecting the outstanding Common Stock as a class without the Corporation’s receipt of consideration, appropriate adjustments shall be made by the Plan Administrator to (1) the maximum numberand/or class of securities issuable under the Plan, (2) the maximum numberand/or class of securities for which any one person may be granted options and direct stock issuances under the Plan per calendar year, (3) the numberand/or class of securities and the exercise price per share in effect under each outstanding option under the Plan (including the options transferred to this Plan from the Predecessor Plan), and (4) the numberand/or class of securities for which grants are subsequently to be made under the Automatic Option Grant Program. Such adjustments to the outstanding options are to be effected in a manner that shall preclude the enlargement or dilution of rights and benefits under such options. The adjustments determined by the Plan Administrator shall be binding.
ARTICLE TWO
DISCRETIONARY OPTION GRANT PROGRAM
I.  OPTION TERMS
Each option shall be evidenced by one or more documents in the form approved by the Plan Administrator. However, each such document shall comply with the terms specified below. Each document evidencing an Incentive Option shall, in addition, be subject to the provisions of the Plan applicable to such options.
A. Exercise Price.
1. The exercise price per share shall be fixed by the Plan Administrator but shall not be less than 100% of the Fair Market Value per share of Common Stock on the option grant date.
2. The exercise price shall become immediately due upon exercise of the option and shall, subject to the provisions of Section I of Article Five and the documents evidencing the option, be payable in one or more of the forms specified below:
(a) cash or check made payable to the Corporation,
(b) shares of Common Stock held for the requisite period necessary to avoid a charge to the Corporation’s earnings for financial reporting purposes and valued at Fair Market Value on the Exercise Date, or
(c) to the extent the option is exercised for vested shares, through a special sale and remittance procedure pursuant to which the Optionee shall concurrently provide irrevocable instructions to (a) a Corporation-designated brokerage firm to effect the immediate sale of the purchased shares and remit to the Corporation, out of the sale proceeds available on the settlement date, sufficient funds to cover the aggregate exercise price payable for the purchased shares plus all applicable income and employment taxes required to be withheld by the Corporation by reason of such exercise and (b) the Corporation to deliver the certificates for the purchased shares directly to such brokerage firm in order to complete the sale.


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Except to the extent such sale and remittance procedure is utilized, payment of the exercise price for the purchased shares must be made on the Exercise Date.
B. Exercise and Term of Options.  Each option shall be exercisable at such time or times, during such period and for such number of shares as shall be determined by the Plan Administrator and set forth in the documents evidencing the option. However, no option shall have a term in excess of 10 years measured from the option grant date.
C. Effect of Termination of Service.
1. The following provisions shall govern the exercise of any options granted pursuant to the Discretionary Option Grant Program that are outstanding at the time of the Optionee’s cessation of Service:
(a) Immediately upon the Optionee’s cessation of Service, the option shall terminate with respect to the unvested shares subject to the option.
(b) Should the Optionee’s Service be terminated for Misconduct or should the Optionee otherwise engage in Misconduct, then the option shall terminate immediately with respect to all shares subject to the option.
(c) Should the Optionee’s Service terminate for reasons other than Misconduct, then the option shall remain exercisable during such period of time after the Optionee’s Service ceases as shall be determined by the Plan Administrator and set forth in the documents evidencing the option, but no option shall be exercisable after its Expiration Date. During the applicable post-Service exercise period, the option may not be exercised in the aggregate for more than the number of vested shares for which the option is exercisable on the date of the Optionee’s Service ceased. Upon the expiration of the applicable exercise period or (if earlier) upon the Expiration Date, the option shall terminate with respect to any vested shares subject to the options.
2. Among its discretionary powers, the Plan Administrator shall have complete discretion, exercisable either at the time an option is granted or at any time while the option remains outstanding, to extend the period of time for which the option is to remain exercisable following the Optionee’s cessation of Service, but in no event beyond the expiration of the option term. The Plan Administrator should consider the tax and accounting consequences before exercising such discretion.
D. Stockholder Rights.  The holder of an option shall have no stockholder rights with respect to the shares subject to the option until such person shall have exercised the option, paid the exercise price and become a holder of record of the purchased shares.
E. Repurchase Rights.  The Plan Administrator shall have the discretion to grant options that are exercisable for unvested shares of Common Stock. Should the Optionee cease Service while such shares are unvested, the Corporation shall have the right to repurchase any or all of those unvested shares at a price per share equal to thelowerof (1) the exercise price paid per share or (2) the Fair Market Value per share of Common Stock at the time of the repurchase. The terms upon which such repurchase right shall be exercisable (including the period and procedure for exercise and the appropriate vesting schedule for the purchased shares) shall be established by the Plan Administrator and set forth in the document evidencing such repurchase right.
F. Limited Transferability of Options.  During the lifetime of the Optionee, Incentive Options shall be exercisable only by the Optionee and shall not be assignable or transferable other than by will or the laws of inheritance following the Optionee’s death. Non-Statutory Options shall be subject to the same restriction, except Non-Statutory Options may be assigned in whole or in part during the Optionee’s lifetime to one or more members of the Optionee’s family or to a trust established exclusively for one or more such family members or to the Optionee’s former spouse. The terms applicable to the assigned portion shall be the same as those in effect for the option immediately prior to such assignment and shall be set forth in such documents issued to the assignee as the Plan Administrator may deem appropriate.


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II.  INCENTIVE OPTIONS
The terms specified below shall be applicable to all Incentive Options. Except as modified by the provisions of this Section II, all the provisions of Articles One, Two and Five shall be applicable to Incentive Options. Options, which are specifically designated as Non-Statutory Options when issued under the Plan, shallnotbe subject to the terms of this Section II.
A. Eligibility.  Incentive Options may only be granted to Employees.
B. Dollar Limitation.  The aggregate Fair Market Value of the shares of Common Stock (determined as of the respective date) for which one or more options granted to any Employee pursuant to the Plan (or any other option plan of the Corporation or any Parent or Subsidiary) may for the first time become exercisable as Incentive Options during any one calendar year shall not exceed $100,000. To the extent that an Optionee’s options exceed that limit, they will be treated as Non-Statutory Options (but all of the other provisions of the option shall remain applicable), with the first options that were awarded to the Optionee to be treated as Incentive Options.
C. 10% Stockholder.  If any Employee to whom an Incentive Option is granted is a 10% Stockholder, then the exercise price per share shall not be less than 110% of the Fair Market Value per share of Common Stock on the option grant date, and the option term shall not exceed five years measured from the option grant date.
III. CHANGE IN CONTROL
A. In the event a Change in Control occurs, the shares of Common Stock at the time subject to each outstanding option granted pursuant to this Discretionary Option Grant Program shall automatically vest in full so that each such option shall, immediately prior to the effective date of the Change in Control, become exercisable for all the shares of Common Stock at the time subject to such option and may be exercised for any or all of those shares as fully vested shares of Common Stock. However, an outstanding option shall not become vested on such an accelerated basis if and to the extent: (1) such option is to be assumed by the successor corporation (or parent thereof) or is otherwise to continue in full force pursuant to the terms of transaction or (2) such option is to be replaced with a cash incentive program of the successor corporation which preserves the spread existing at the time of the Change in Control on any shares for which the option is not otherwise at that time exercisable and provides for subsequent payout of that spread no later than the time the Optionee would vest in those option shares or (3) the acceleration of such option is subject to other limitations imposed by the Plan Administrator.
B. All outstanding repurchase rights under the Discretionary Option Grant Program shall automatically terminate, and the shares of Common Stock subject to those terminated rights shall immediately vest in full, immediately prior to the occurrence of a Change in Control, except to the extent: (1) those repurchase rights are to be assigned to the successor corporation (or parent thereof) or are otherwise to continue in full force pursuant to the terms of the transaction or (2) such accelerated vesting is precluded by other limitations imposed by the Plan Administrator.
C. Immediately following the consummation of the Change in Control, all outstanding options granted pursuant to the Discretionary Option Grant Program shall terminate, except to the extent assumed by the successor corporation (or parent thereof) or otherwise continued in full force and effect pursuant to the terms of the transaction.
D. Each option granted pursuant to the Discretionary Option Grant Program that is assumed or otherwise continued in effect in connection with a Change in Control shall be appropriately adjusted, immediately after such Change in Control, to apply to the number and class of securities which would have been issuable to the Optionee in consummation of such Change in Control had the option been exercised immediately prior to such Change in Control. Appropriate adjustments to reflect such Change in Control shall also be made to (1) the exercise price payable per share under each outstanding option, provided the aggregate exercise price payable for such securities shall remain the same, (2) the maximum numberand/or class of securities available for issuance over the remaining term of the Plan and (3) the maximum numberand/or class of securities for which any one person may be granted options and direct stock issuances pursuant to the Plan per calendar year. To the extent the holders of Common Stock receive cash consideration for their Common Stock in consummation of the Change in Control, the successor corporation may, in connection with the assumption of the outstanding options granted pursuant to the


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Discretionary Option Grant Program, substitute one or more shares of its own common stock with a fair market value equivalent to the cash consideration paid per share of Common Stock in such transaction.
E. Among its discretionary powers, the Plan Administrator shall have the ability to structure an option (either at the time the option is granted or at any time while the option remains outstanding) so that the option shall become immediately exercisable and some or all of the shares subject to that option shall automatically become vested (and some or all of the repurchase rights of the Corporation with respect to the unvested shares subject to that option shall immediately terminate) upon the occurrence of a Change in Control, a Proxy Contest or any other specified event or the Optionee’s Involuntary Termination within a designated period of time following any of these events. In addition, the Plan Administrator may provide that one or more of the Corporation’s repurchase rights with respect to some or all of the shares held by the Optionee at the time of such a Change in Control, a Proxy Contest, or any other specified event or the Optionee’s Involuntary Termination within a designated period of time following such an event shall immediately terminate and all of the shares shall become vested.
F. The portion of any Incentive Option accelerated in connection with a Change in Control or Proxy Contest shall remain exercisable as an Incentive Option only to the extent the $100,000 limitation described in Section II.B. above is not exceeded. To the extent such dollar limitation is exceeded, the accelerated portion of such option shall be exercisable as a Non-Statutory Option under the federal tax laws.
G. The outstanding options shall in no way affect the right of the Corporation to undertake any corporate action.
ARTICLE THREE
STOCK ISSUANCE PROGRAM
I.  STOCK ISSUANCE TERMS
Shares of Common Stock may be issued under the Stock Issuance Program through direct and immediate issuances without any intervening option grants. Each stock issuance under this program shall be evidenced by a stock issuance agreement that complies with the terms specified below. Shares of Common Stock may also be issued under the Stock Issuance Program pursuant to awards that entitle the recipients to receive those shares upon the attainment of designated performance goals or the satisfaction of specified Service requirements.
A. Purchase Price.
1. The purchase price per share shall be fixed by the Plan Administrator.
2. Subject to the provisions of Section I of Article Five, shares of Common Stock may be issued under the Stock Issuance Program for any of the following items of consideration which the Plan Administrator may deem appropriate in each individual instance:
(a) cash or check made payable to the Corporation, or
(b) past services rendered to the Corporation (or any Parent or Subsidiary).
B. Vesting Provisions.
1. Except as otherwise provided below in Section I.B.2 of the Plan, shares of Common Stock issued under the Stock Issuance Program for a purchase price less than one hundred percent (100%) of the Fair Market Value of the shares of Common Stock on the date of the grant of the stock issuance agreement for such shares of Common Stock, shall be subject to the following vesting requirements of this Section I.B.1 of the Plan. The shares of Common Stock shall vest ratably over a period of not less than three years subject to continued employment or service with the Corporation (with the Corporation retaining the right to repurchase any of such unvested shares at the original purchase price of such shares in the event the recipient terminates employment as provided in the stock issuance agreement, except as otherwise provided in this section). The vesting of such shares of Common Stock may not be accelerated except in the event of a Change of Control of the Corporation, in the event of the death or Disability of the recipient of the shares of Common Stock, in the event of the actual


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or constructive termination of the employment or services of the recipient with the Corporation by the Corporation without cause (as determined by the Board) pursuant to the stock issuance agreement, an employment or services agreement, or in connection with a separation agreement or severance plan or arrangement under which the recipient of the shares of Common Stock is required to provide consideration for such acceleration of the vesting of the shares of Common Stock. Notwithstanding the foregoing, shares of Common Stock may also be issued under the Stock Issuance Program pursuant to awards that entitle the recipients to receive those shares (i) solely upon the attainment of designated performance goals provided that the minimum performance period is not less than one year, or (ii) upon the satisfaction of additional Service requirements in addition to the Service requirements in the preceding provisions of this section.
2. Shares of Common Stock issued under the Stock Issuance Program representing up to five percent (5%) of the total number of shares of Common Stock reserved for issuance under the Plan shall not be subject to the restrictions provided above in Section I.B.1 of the Plan and may, in the discretion of the Plan Administrator, be fully and immediately vested upon issuance or may vest in one or more installments over the Participant’s period of Service or upon attainment of specified performance objectives. The elements of the vesting schedule applicable to any unvested shares of Common Stock issued under the Stock Issuance Program pursuant to this Section I.B.2 shall be determined by the Plan Administrator and incorporated into the stock issuance agreement. Shares of Common Stock issued pursuant to this Section I.B.2 may also be issued under the Stock Issuance Program pursuant to awards that entitle the recipients to receive those shares upon the attainment of designated performance goals or the satisfaction of specified Service requirements.
3. Any new, substituted or additional securities or other property (including money paid other than as a regular cash dividend) which the Participant may have the right to receive with respect to the Participant’s unvested shares of Common Stock by reason of any stock dividend, stock split, recapitalization, combination of shares, exchange of shares or other change affecting the outstanding Common Stock as a class without the Corporation’s receipt of consideration shall be issued subject to such escrow arrangements as the Plan Administrator shall deem appropriate and shall be vested to the same extent the Participant’s shares of Common Stock are vested.
4. The Participant shall have full stockholder rights (other than transferability) with respect to any shares of Common Stock issued to the Participant pursuant to the Stock Issuance Program, whether or not the Participant’s interest in those shares is vested. Accordingly, the Participant shall have the right to vote such shares and to receive any regular cash dividends paid on such shares. Cash dividends constitute taxable compensation to the Participant are deductible by the Corporation (unless the Participant has made an election under Section 83(b) of the Code).
5. Should the Participant cease to remain in Service while holding one or more unvested shares of Common Stock issued under the Stock Issuance Program or should the performance objectives not be attained with respect to one or more such unvested shares of Common Stock, then those shares shall be immediately surrendered to the Corporation for cancellation, and the Participant shall have no further stockholder rights with respect to those shares. To the extent the surrendered shares were previously issued to the Participant for consideration paid in cash or cash equivalent (including the Participant’s purchase-money indebtedness), the Corporation shall repay the Participant, without interest, thelowerof (a) the cash consideration paid for the surrendered shares or (b) the Fair Market Value of those shares at the time of cancellationand/or shall cancel the unpaid principal balance of any outstanding purchase-money note of the Participant attributable to the surrendered shares by the applicable clause (a) or (b) amount.
6. The Plan Administrator may in its discretion waive the surrender and cancellation of one or more unvested shares of Common Stock that would otherwise occur upon the cessation of the Participant’s Service or the non-attainment of the performance objectives applicable to those shares. Such waiver shall result in the immediate vesting of the Participant’s interest in the shares of Common Stock as to which the waiver applies. Such waiver may be effected at any time, whether before or after the Participant’s cessation of Service or the attainment or non-attainment of the applicable performance objectives.
7. Outstanding share right awards under the Stock Issuance Program shall automatically terminate, and no shares of Common Stock shall actually be issued in satisfaction of those awards, if the performance goals or


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Service requirements established for such awards are not attained or satisfied. The Plan Administrator, however, shall have the discretionary authority to issue shares of Common Stock under one or more outstanding share right awards as to which the designated performance goals or Service requirements have not been attained or satisfied.
II.  CHANGE IN CONTROL
A. All of the Corporation’s outstanding repurchase rights under the Stock Issuance Program shall terminate automatically, and all the shares of Common Stock subject to those terminated rights shall immediately vest in full, immediately prior to the occurrence of a Change in Control, except to the extent (1) those repurchase rights are to be assigned to the successor corporation (or parent thereof) or are otherwise to continue in full force and effect pursuant to the terms of the transaction or (2) such accelerated vesting is precluded by other limitations imposed in the stock issuance agreement.
B. The Plan Administrator shall have the discretionary authority to structure one or more of the Corporation’s repurchase rights under the Stock Issuance Program so that those rights shall automatically terminate in whole or in part, and some or all of the shares of Common Stock subject to those terminated rights shall immediately vest, upon the occurrence of a Change in Control, a Proxy Contest or any other event, or the Participant’s Involuntary Termination within a designated period of time following any of these events.
ARTICLE FOUR
AUTOMATIC OPTION GRANT PROGRAM
I.  OPTION TERMS
A. Automatic Grants.  Option grants shall be made pursuant to the Automatic Option Grant Program in effect under this Plan as follows:
1. Initial Grant: Provided the non-Employee director has not previously been in the employ of the Corporation or any Parent or Subsidiary, each such individual who is first elected or appointed as a non-Employee director at any time on or after the Plan Effective Date shall automatically be granted, on the date of such initial election or appointment, a Non-Statutory Option. The number of shares of Common Stock subject to the option shall be equal to the sum of (a) 20,000 and (b) the product of (x) 1,250 shares and (y) (i) 1 plus (ii) the number of whole calendar months between the date of election or appointment of such non-Employee director to the Board and the anticipated date of the next Annual Stockholders’ Meeting or Special Meeting in lieu of an Annual Stockholders’ Meeting at which directors are elected.
2. Annual Grants: On the date of each Annual Stockholders’ Meeting or Special Meeting in lieu of an Annual Stockholders’ Meeting at which directors are elected, each individual who is to continue to serve as a non-Employee director following an Annual Stockholders’ Meeting, whether or not that individual is standing for re-election to the Board at that particular Annual Stockholders’ Meeting, shall automatically be granted a Non-Statutory Option to purchase 20,000 shares of Common Stock. There shall be no limit on the number of such annual option grants any one non-Employee director may receive over his or her period of Board service, and non-Employee directors who have previously been in the employ of the Corporation (or any Parent or Subsidiary) or who have otherwise received one or more option grants from the Corporation shall be eligible to receive one or more such annual option grants over their period of continued Board service.
B. Exercise Price.  The exercise price per share for each option grant made under the Automatic Option Grant Program shall be equal to 100% of the Fair Market Value per share of Common Stock on the option grant date.


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C. Option Term.  Each option grant under the Automatic Option Grant Program shall have a term of 10 years measured from the option grant date.
D. Exercise and Vesting of Options.
1. Each option under the Automatic Option Grant Program shall be immediately exercisable for any or all of the option shares. However, any unvested shares purchased under the option shall be subject to repurchase by the Corporation, at thelowerof (a) the exercise price paid per share or (b) the Fair Market Value per share of Common Stock at the time of repurchase, should the Optionee cease such Board service prior to vesting in those shares.
2. The shares subject to each initial option grant shall vest, and the Corporation’s repurchase right shall lapse, in quarterly installments upon the Optionee’s completion of each quarter of service as a non-Employee director measured from the option grant date.
3. The shares subject to each annual option grant shall vest, and the Corporation’s repurchase right shall lapse, in four successive quarterly installments upon the Optionee’s completion of the each quarter of service as a non-Employee director measured from the grant date.
E. Termination of Service.  The following provisions shall govern the exercise of any options granted to the Optionee pursuant to the Automatic Option Grant Program that are outstanding at the time the Optionee ceases to serve as a director:
1. The option shall be exercisable until the earlier to occur of (a) the Expiration Date or (b) the one-year anniversary of the date the Optionee’s Board service terminated.
2. During the post-Service exercise period, the option may not be exercised in the aggregate for more than the number of vested shares of Common Stock for which the option is exercisable at the time of the Optionee’s cessation of Board service.
3. Should the Optionee’s Board service cease due to death or Permanent Disability, then all shares at the time subject to the option shall immediately vest so that such option may be exercised for any or all of those shares as fully vested shares of Common Stock.
4. Upon the expiration of the one year exercise period or (if earlier) upon the Expiration Date, the option shall terminate for any vested shares for which the option has not been exercised. However, the option shall, immediately upon the Optionee’s cessation of Board service for any reason other than death or Permanent Disability, terminate to the extent the option is not otherwise at that time exercisable for vested shares.
F. Election to Decline Equity Incentive Grants.  Notwithstanding anything to the contrary set forth in the Plan, each non-Employee director may elect to decline one or more of the option grants to which he or she may otherwise be entitled under the Automatic Option Grant Program, provided that any non-Employee director who elects to decline any such option grant shall not receive any other compensation in lieu of that option grant. Such election shall be made pursuant to written notice to the Corporation in which the non-Employee director specifically declines one or more such option grants and acknowledges that such director will not receive any other compensation from the Corporation in lieu of those option grants.
II.  CHANGE IN CONTROL/PROXY CONTEST
A. In the event a Change in Control occurs while the Optionee remains a director, the shares of Common Stock at the time subject to each outstanding option that was granted pursuant to this Automatic Option Grant Program shall automatically vest in full so that each such option shall, immediately prior to the effective date of the Change in Control, become exercisable for all the shares subject to the option at that time as fully vested shares of Common Stock and may be exercised for any or all of those vested shares. Immediately following the consummation of the Change in Control, each automatic option grant shall terminate, except to the extent assumed by the successor corporation (or parent thereof) or otherwise continued in effect pursuant to the terms of the Change in Control transaction.


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B. In the event a Proxy Contest occurs while the Optionee remains a director, the shares of Common Stock at the time subject to each outstanding option granted pursuant to this Automatic Option Grant Program shall automatically vest in full so that each such option shall, immediately prior to the effective date of the Proxy Contest, become exercisable for all the option shares as fully vested shares of Common Stock and may be exercised for any or all of those vested shares. Such option shall remain exercisable until theearliestto occur of (1) the Expiration Date, (2) the expiration of the one-year period measured from the date of the Optionee’s cessation of Board service, or (3) the termination of the option in connection with a Change in Control transaction.
C. All outstanding repurchase rights under this Automatic Option Grant Program shall automatically terminate, and the shares of Common Stock subject to those terminated rights shall vest in full, immediately prior to the occurrence of a Change in Control or a Proxy Contest that occurs while the Optionee remains a director.
D. Each option which is assumed or otherwise continued in effect in connection with a Change in Control shall be appropriately adjusted, immediately after such Change in Control, to apply to the number and class of securities which would have been issuable to the Optionee in consummation of such Change in Control had the option been exercised immediately prior to such Change in Control. Appropriate adjustments shall also be made to the exercise price payable per share under each outstanding option,providedthe aggregate exercise price payable for such securities shall remain the same. To the extent the holders of Common Stock receive cash consideration for their Common Stock in consummation of the Change in Control, the successor corporation may, in connection with the assumption of the outstanding options granted pursuant to the Automatic Option Grant Program, substitute one or more shares of its own common stock with a fair market value equivalent to the cash consideration paid per share of Common Stock in such transaction.
E. The grant of options under the Automatic Option Grant Program shall in no way affect the right of the Corporation to undertake any corporate action.
III. REMAINING TERMS
The remaining terms of each option granted under the Automatic Option Grant Program shall be the same as the terms in effect for option grants made under the Discretionary Option Grant Program.
ARTICLE FIVE
MISCELLANEOUS
I.  FINANCING
The Plan Administrator may permit any Optionee or Participant to pay the option exercise price under the Discretionary Option Grant Program or the purchase price of shares issued under the Stock Issuance Program by delivering a full-recourse, interest-bearing promissory note payable in one or more installments. After considering the tax and accounting consequences, the Plan Administrator shall establish the terms of any such promissory note (including the interest rate and the terms of repayment). In no event may the maximum credit available to the Optionee or Participant exceed the sum of (A) the aggregate option exercise price or purchase price payable for the purchased shares (less the par value of such shares) plus (B) any applicable income and employment tax liability incurred by the Optionee or the Participant in connection with the option exercise or share purchase. Prior to permitting the use of promissory notes as payment under the Plan, the Plan Administrator should consider the restrictions on doing so imposed by Regulation U.
II.  TAX WITHHOLDING
A. The Corporation’s obligation to deliver shares of Common Stock upon the exercise of options or the issuance or vesting of such shares granted pursuant to the Plan shall be subject to the satisfaction of all applicable income and employment tax withholding requirements.
B. The Plan Administrator may, in its discretion, provide any or all holders of Non-Statutory Options or unvested shares of Common Stock issued pursuant to the Plan (other than the options granted to non-Employee


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directors or independent contractors) with the right to use shares of Common Stock in satisfaction of all or part of the Withholding Taxes to which such holders may become subject in connection with the exercise of their options or the vesting of their shares. Such right may be provided to any such holder in either or both of the following formats:
1. Stock Withholding: The election to have the Corporation withhold, from the shares of Common Stock otherwise issuable upon the exercise of such Non-Statutory Option or the vesting of such shares, a portion of those shares. So as to avoid adverse accounting treatment, the number of shares that may be withheld for this purpose may not exceed the minimum number needed to satisfy the applicable income and employment tax withholding rules.
2. Stock Delivery: The election to deliver to the Corporation, at the time the Non-Statutory Option is exercised or the shares vest, one or more shares of Common Stock previously acquired by such holder (other than in connection with the option exercise or share vesting triggering the Withholding Taxes). So as to avoid adverse accounting treatment, the number of shares that may be withheld for this purpose may not exceed the minimum number needed to satisfy the applicable income and employment tax withholding rules.
III. SHARE ESCROW/LEGENDS
Unvested shares of Common Stock may, in the Plan Administrator’s discretion, be held in escrow by the Corporation until the Optionee’s or the Participant’s interest in such shares vests or may be issued directly to the Optionee or the Participant with restrictive legends on the certificates evidencing those unvested shares.
IV.  RESTRICTIONS ON CANCELLATION AND REGRANT OF STOCK OPTIONS AND REPRICING OF STOCK OPTIONS
Except with the approval of the stockholders of the Corporation, (i) no option may be granted under the Plan to an employee, consultant or member of the Board in direct exchange for, or in direct connection with, the cancellation or surrender of an outstanding option of such person having a higher exercise price, and (ii) no option granted under the Plan may be amended to reduce the exercise price per share of the Common Stock of the Corporation subject to such option below the exercise price of the option as of the date the option is granted, except to reflect the substitution for or assumption of the option in connection with a Change in Control of the Corporation or if any change is made in the Common Stock subject to the Plan or subject to any option under the Plan without the receipt of consideration by the Corporation (through merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or other transaction not involving the receipt of consideration by the Corporation) in which case the outstanding stock options will be appropriately adjusted in the class or classes and number of securities and price per share of Common Stock subject to such outstanding stock options. In the event of the substitution for or assumption of an option in connection with a Change in Control of the Corporation or if any change is made in the Common Stock subject to the Plan or subject to any option under the Plan without the receipt of consideration by the Corporation, the Board shall make such adjustments, and its determination shall be final, binding and conclusive. (The conversion of any convertible securities of the Corporation shall not be treated as a transaction “without receipt of consideration” by the Corporation.)
V.  EFFECTIVE DATE AND TERM OF THE PLAN
A. The Plan shall become effective on May 23, 2002. No options may be granted or stock issued under the Plan at any time before May 23, 2002.
B. The Plan shall serve as the successor to the Predecessor Plan, and no further option grants or direct stock issuances shall be made under the Predecessor Plan after May 23, 2002. All options outstanding under the Predecessor Plan on May 23, 2002 shall be transferred to the Plan at that time and shall be treated as outstanding options under the Plan.


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C. Each outstanding option so transferred shall continue to be governed by the terms of the documents evidencing such option, and no provision of the Plan shall be deemed to automatically affect or otherwise modify the rights or obligations of the holders of such transferred options.
D. Notwithstanding the previous sentence, one or more provisions of the Plan, including, without limitation, the acceleration provisions of the Discretionary Option Grant Program relating to Changes in Control and Proxy Contests, may, in the Plan Administrator’s discretion, be extended to one or more options incorporated from the Predecessor Plans provided that such provision or provisions do not adversely affect the Optionee’s rights and obligations.
E. Unless terminated by the Board prior to such time, the Plan shall terminate on May 23, 2016. Should the Plan terminate when any options or unvested shares are outstanding, such awards shall continue in effect in accordance with the provisions of the documents evidencing such grants or issuances.
VI.  AMENDMENT OF THE PLAN
The Board shall have complete and exclusive power and authority to amend the Plan or any awards made hereunder. However, no such amendment of the Plan shall adversely affect the rights and obligations with respect to options or unvested stock issuances at the time outstanding under the Plan unless the Optionee or the Participant consents to such amendment, and, except as provided in Section IV of Article Five of the Plan relating to adjustments upon changes in Common Stock, no increase in the number of shares of Common Stock reserved for issuance under the Plan shall be effective unless approved by the stockholders of the Corporation to the extent stockholder approval is necessary to satisfy the requirements of Section 422 of the Code, Securities and Exchange CommissionRule 16b-3 or any Nasdaq or securities exchange listing requirements. In addition, stockholder approval shall be necessary to modify the eligibility requirements for participation in the Plan.
VII. USE OF PROCEEDS
Any cash proceeds received by the Corporation from the sale of shares of Common Stock under the Plan shall be used for any corporate purpose.
VIII. REGULATORY APPROVALS
A. The implementation of the Plan, the granting of any stock option under the Plan and the issuance of any shares of Common Stock (1) upon the exercise of any option or (2) under the Stock Issuance Program shall be subject to the Corporation’s procurement of all approvals and permits required by regulatory authorities having jurisdiction over the Plan, the stock options granted under it and the shares of Common Stock issued pursuant to it.
B. No shares of Common Stock or other assets shall be issued or delivered under the Plan unless and until there shall have been compliance with all applicable requirements of applicable securities laws, including the filing and effectiveness of theForm S-8 registration statement for the shares of Common Stock issuable under the Plan, and all applicable requirements of any stock exchange or the Nasdaq Stock Market on which Common Stock is then listed for trading or traded.
IX.  NO EMPLOYMENT/SERVICE RIGHTS
Nothing in the Plan shall confer upon the Optionee or the Participant any right to continue in Service for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Corporation (or any Parent or Subsidiary employing or retaining such person) or of the Optionee or the Participant, which rights are hereby expressly reserved by each, to terminate such person’s Service at any time for any reason, with or without cause.
X.  CALIFORNIA BLUE SKY PROVISIONS
If the Corporation is not exempt from California securities laws, the following provisions shall apply to any sale of Common Stock or any option grant to an individual who is eligible to receive such grants pursuant to the Plan who resides in the State of California.


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A. Option Grant Program.
1. The exercise price per share shall be fixed by the Plan Administrator in accordance with the following provisions:
(a) The exercise price per share applicable to each option shall not be less than 85% of the Fair Market Value per share of Common Stock on the date the option is granted.
(b) If the person to whom the option is granted is a 10% Stockholder, then the exercise price per share shall not be less than 110% of the Fair Market Value per share of Common Stock on the date the option is granted.
2. The Plan Administrator may not impose a vesting schedule upon any option grant or the shares of Common Stock subject to that option which is more restrictive than 20% per year vesting, with the initial vesting to occur not later than one year after the option grant date. However, such limitation shall not be applicable to any option grants made to individuals who are officers of the Corporation, non-Employee directors or independent contractors.
3. Unless the Optionee’s Service is terminated for Misconduct (in which case the option shall terminate immediately), the option (to the extent it was vested and exercisable at that the time Optionee’s Service ceased) must remain exercisable, following Optionee’s termination of Service, for at least (a) six months if Optionee’s Service terminates due to death or Permanent Disability or (b) thirty days in all other cases.
B. Stock Issuance Program.
1. The purchase price per share for shares issued under the Stock Issuance Program shall be fixed by the Plan Administrator but shall not be less than 85% of the Fair Market Value per share of Common Stock on the issue date. However, the purchase price per share of Common Stock issued to a 10% Stockholder shall not be less than 100% of such Fair Market Value.
2. The Plan Administrator may not impose a vesting schedule upon any stock issuance effected under the Stock Issuance Program which is more restrictive than 20% per year vesting, with initial vesting to occur not later than one year after the issuance date. Such limitation shall not apply to any Common Stock issuances made to the officers of the Corporation, non-Employee directors or independent contractors.
C. Repurchase Rights.  To the extent specified in a stock purchase agreement or stock issuance agreement, the Corporationand/or its stockholders shall have the right to repurchase any or all of the unvested shares of Common Stock held by an Optionee or Participant when such person’s Service ceases. However, except with respect to grants to officers, directors, and consultants of the Corporation, the repurchase right must satisfy the following conditions:
1. The Corporation’s right to repurchase the unvested shares of Common Stock must lapse at the rate of at least 20% per year over five years from the date the option was granted under the Discretionary Option Grant Program or the shares were issued under the Stock Issuance Program.
2. The Corporation’s repurchase right must be exercised within ninety days of the date that Service ceased (or the date the shares were purchased, if later).
3. The purchase price must be paid in the form of cash or cancellation of the purchase money indebtedness for the shares of Common Stock.


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APPENDIX
The following definitions shall be in effect under the Plan:
A. Automatic Option Grant Program shall mean the automatic option grant program in effect under Article Four of the Plan.
B. Board shall mean the Corporation’s Board of Directors.
C. Change in Control shall mean a change in ownership or control of the Corporation effected through any of the following transactions:
(i) a merger, consolidation or other reorganization approved by the Corporation’s stockholders,unlesssecurities representing more than 50% of the total combined voting power of the voting securities of the successor corporation are immediately thereafter beneficially owned, directly or indirectly, by the persons who beneficially owned the Corporation’s outstanding voting securities immediately prior to such transaction, or
(ii) the sale, transfer or other disposition of all or substantially all of the Corporation’s assets, or
(iii) the acquisition, directly or indirectly, by any person or related group of persons (other than the Corporation or a person that directly or indirectly controls, is controlled by, or is under common control with, the Corporation), of beneficial ownership (within the meaning ofRule 13d-3 of the Exchange Act) of securities possessing more than 50% of the total combined voting power of the Corporation’s outstanding securities pursuant to a tender or exchange offer made directly to the Corporation’s stockholders.
D. Code shall mean the Internal Revenue Code of 1986, as amended.
E. Common Stock shall mean the Corporation’s common stock.
F. Corporation shall mean BIOLASE Technology, Inc., a Delaware corporation, and any corporate successor to all or substantially all of the assets or voting stock of BIOLASE Technology, Inc. which adopts the Plan.
G. Discretionary Option Grant Program shall mean the discretionary option grant program in effect under Article Two of the Plan.
H. Employee shall mean an individual who is in the employ of the Corporation (or any Parent or Subsidiary), subject to the control and direction of the employer entity as to both the work to be performed and the manner and method of performance.
I. Exchange Act shall mean the Securities Exchange Act of 1934, as amended.
J. Exercise Date shall mean the date on which the option shall have been exercised in accordance with the appropriate option documentation.
K. Fair Market Value per share of Common Stock on any relevant date shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq Stock Market, then the Fair Market Value shall be the closing selling price per share of Common Stock on the date in question, as such price is reported by the National Association of Securities Dealers on the Nasdaq Stock Market and published inThe Wall Street Journal. If there is no closing selling price for the Common Stock on the date in question, then the Fair Market Value shall be the closing selling price on the last preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any stock exchange, then the Fair Market Value shall be the closing selling price per share of Common Stock on the date in question on the stock exchange determined by the Plan Administrator to be the primary market for the Common Stock, as such price is officially quoted in the composite tape of transactions on such exchange and published inThe Wall Street


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Journal. If there is no closing selling price for the Common Stock on the date in question, then the Fair Market Value shall be the closing selling price on the last preceding date for which such quotation exists.
(iii) If the Common Stock is at the time neither listed on any stock exchange or the Nasdaq Stock Market, then the Fair Market Value shall be determined by the Plan Administrator after taking into account such factors as the Plan Administrator shall deem appropriate.
L. Incentive Option shall mean an option that satisfies the requirements of Code Section 422.
M. Involuntary Termination shall mean the termination of the Service of any individual which occurs by reason of:
(i) such individual’s involuntary dismissal or discharge by the Corporation (or its Parent or Subsidiary) for reasons other than Misconduct, or
(ii) such individual’s voluntary resignation following (a) a change in his or her position with the Corporation (or any Parent or Subsidiary) which materially reduces his or her duties and responsibilities, (b) a reduction in his or her base salary by more than 15%, unless the base salaries of all similarly situated individuals are reduced by the Corporation (or any Parent or Subsidiary) employing the individual or (c) a relocation of such individual’s place of employment by more than fifty miles, provided and only if such change, reduction or relocation is effected by the Corporation (or any Parent or Subsidiary) without the individual’s consent.
N. Misconduct shall mean the commission of any act of fraud, embezzlement or dishonesty by the Optionee or Participant, any unauthorized use or disclosure by such person of confidential information or trade secrets of the Corporation (or any Parent or Subsidiary), or any other intentional misconduct by such person adversely affecting the business or affairs of the Corporation (or any Parent or Subsidiary) in a material manner. The foregoing definition shall not in any way preclude or restrict the right of the Corporation (or any Parent or Subsidiary) to discharge or dismiss any Optionee, Participant or other person in the Service of the Corporation (or any Parent or Subsidiary) for any other acts or omissions, but such other acts or omissions shall not be deemed, for purposes of the Plan, to constitute grounds for termination for Misconduct.
O. Non-Statutory Option shall mean an option not intended to be an Incentive Option.
P. Optionee shall mean any person to whom an option is granted under the Discretionary Option Grant or Automatic Option Grant Program.
Q. Parent shall mean any corporation (other than the Corporation) in an unbroken chain of corporations ending with the Corporation, provided each corporation in the unbroken chain (other than the Corporation) owns, at the time of the determination, stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.
R. Participant shall mean any person who is issued shares of Common Stock under the Stock Issuance Program.
S. Permanent Disability or Permanently Disabled shall mean the inability of the Optionee or the Participant to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of 12 months or more. However, solely for purposes of the Automatic Option Grant Program, Permanent Disability or Permanently Disabled shall mean the inability of the non-Employee director to perform his or her usual duties as a director by reason of any medically determinable physical or mental impairment expected to result in death or to be of continuous duration of 12 months or more.
T. Plan shall mean the BIOLASE Technology, Inc. 2002 Stock Incentive Plan, as amended.
U. Plan Administrator shall mean the particular entity, whether the Primary Committee, the Board or the Secondary Committee, which is authorized to administer the Discretionary Option Grant and Stock Issuance Programs with respect to one or more classes of eligible persons, to the extent such entity is carrying out its administrative functions under those programs with respect to the persons under its jurisdiction.


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V. Plan Effective Date shall mean the date the Plan becomes effective and shall be coincidental with the date the Plan is approved by the Corporation’s stockholders. The Plan Effective Date is May 23, 2002.
W. Predecessor Plan shall mean the BIOLASE Technology, Inc. 1998 Stock Option Plan, as amended.
X. Primary Committee shall mean the committee comprised of one or more directors designated by the Board to administer the Discretionary Option Grant and Stock Issuance Programs with respect to Section 16 Insiders. To obtain the benefits ofRule 16b-3, there must be at least two members on the Primary Committee and all of the members must be “non-employee” directors as that term is defined in the Rule or the entire Board must approve the grant(s). Similarly, to be exempt from the million dollar compensation deduction limitation of Code Section 162(m), there must be at least two members on the Primary Committee and all of the members must be “outside directors” as that term is defined in Code Section 162(m).
Y. Proxy Contest shall mean a change in ownership or control of the Corporation effected through a change in the composition of the Board over a period of 36 consecutive months or less such that a majority of the directors ceases, by reason of one or more contested elections for directorship, to be comprised of individuals who either (i) have been directors continuously since the beginning of such period or (ii) have been elected or nominated for election as directors during such period by at least a majority of the directors described in clause (i) who were still in office at the time the Board approved such election or nomination.
Z. Secondary Committee shall mean a committee of one or more directors appointed by the Board to administer the Discretionary Option Grant and Stock Issuance Programs with respect to eligible persons other than Section 16 Insiders.
AA. Section 16 Insider shall mean an executive officer or director of the Corporation or the holder of more than 10% of a registered class of the Corporation’s equity securities, in each case subject to the short-swing profit liabilities of Section 16 of the Exchange Act.
BB. Service shall mean the performance of services for the Corporation (or any Parent or Subsidiary) by a person in the capacity of an Employee, a non-Employee member of the board of directors or independent contractor, except to the extent otherwise specifically provided in the documents evidencing the option grant or stock issuance.
CC. Stock Issuance Program shall mean the stock issuance program in effect under Article Three of the Plan.
DD. Subsidiary shall mean any corporation (other than the Corporation) in an unbroken chain of corporations beginning with the Corporation, provided each corporation (other than the last corporation) in the unbroken chain owns, at the time of the determination, stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.
EE. 10% Stockholder shall mean the owner of stock (as determined under Code Section 424(d)) possessing more than 10% of the total combined voting power of all classes of stock of the Corporation (or any Parent or Subsidiary).
FF. Withholding Taxes shall mean the applicable income and employment withholding taxes to which the holder of a Non-Statutory Option or unvested shares of Common Stock under the Plan may become subject in connection with the exercise of those options or the vesting of those shares.


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(FULL PAGE PROXY CARD)
Using a black ink pen, mark your votes with an X as shown in X this example. Please do not write outside the designated areas. Annual Meeting Proxy Card 3X 01B3LD 1 U PX PLEASE FOLD ALONG THE PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE. 3 A Proposals — Our Board of Directors recommends a vote FOR the directors listed below and a vote FOR the listed proposal. 1. To elect six directors to serve until the next annual meeting of stockholders and until their successors are duly elected and qualified or until their earlier resignation or removal. For Against Abstain For Against Abstain For Against Abstain + 01 — Robert M. Anderton, DDS 02 — George V. d’Arbeloff 03 — James R. Largent 04 — Federico Pignatelli 05 — David M. Mulder 06 - Gregory D. Waller For Against Abstain 2. To ratify the appointment of BDO Seidman, LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2010. THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED AS DIRECTED OR, IF NO DIRECTION IS GIVEN, WILL BE VOTED FOR THE DIRECTORS LISTED ABOVE AND FOR THE PROPOSAL LISTED ABOVE. B_ Annual Meeting Proxy Card Authorized Signatures — ThisSignaturesThis section must be completed for your vote to be counted. — Date and Sign Below Please date this proxy card and sign above exactly as your name appears on this card. Joint owners should each sign personally. Corporate proxies should be signed by an authorized officer. Executors, administrators, trustees, etc., should give their full titles. Date (mm/dd/yyyy) — Please print date below. Signature 1 — Please keep signature within the box. Signature 2 — Please keep signature within the box. IMPORTANT ANNUAL MEETING INFORMATION Proposals — Our Board of Directors recommends a vote FOR the directors listed below and a vote FOR proposals 2 and 3. 01 Federico Pignatelli 04 Gregory E. Lichtwardt 02 Dr. Alex K. Arrow 03 Dr. Norman J. Nemoy 1. To elect four directors to serve until the next annual meeting of stockholders and until their successors are duly elected and qualified or until their earlier resignation or removal. For Against Abstain For Against Abstain For Against Abstain THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED AS DIRECTED OR, IF NO DIRECTION IS GIVEN, WILL BE VOTED FOR THE DIRECTORS LISTED ABOVE AND FOR THE PROPOSAL LISTED ABOVE. For Against Abstain 3. To ratify the appointment of BDO USA, LLP as our For Against Abstain independent registered public accounting firm for the fiscal year ending December 31, 2011. 2. To approve the amendment to the 2002 Stock Incentive Plan. MMMMMMMMMMMM MMMMMMMMM 1 U P X 012 9 8 2 4 9 9 6 2 + 01690A

 

(PROXY CARD)(FULL PAGE PROXY CARD)
3_ PLEASE FOLD ALONG THE PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE. 3 Proxy — BIOLASE TECHNOLOGY, INC._ Annual Meeting of Stockholders May 5, 20102011 Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting: The Notice and Proxy Statement/Annual Report on Form 10-K10 K are available on the Investors Section of the Biolase website at www.biolase.com. This Proxy is Solicited on Behalf of the Board of Directors of BIOLASE Technology, Inc. The undersigned revokes all previous proxies, acknowledges receipt of the Notice of Annual Meeting of Stockholders to be held on May 5, 20102011 and the Proxy Statement, and appoints David M. MulderFederico Pignatelli and Federico Pignatelli,Frederick Furry and each of them, the Proxy of the undersigned, with full power of substitution, to vote all shares of Common Stock of BIOLASE Technology, Inc. (the “Company”) which the undersigned is entitled to vote, either on his or her own behalf or on behalf of any entity or entities, at the 20102011 Annual Meeting of Stockholders of the Company to be held at the Company’s corporate headquarters located at 4 Cromwell, Irvine, CA, 92618, on May 5, 2010,2011, at 9:11:00 a.m. local time (the “Annual Meeting”), and at any adjournment or postponement thereof, with the same force and effect as the undersigned might or could do if personally present thereat. The shares represented by this Proxy shall be voted in the manner set forth on this proxy card. By executing this Proxy, the undersigned hereby grants the named proxy holders discretionary authority to act upon all other matters incident to the conduct of the meeting or as may properly come before the meeting, or any adjournment thereof. The undersigned hereby ratifies and confirms all that the attorneys and proxies, or any of them, or their substitutes, shall lawfully do or cause to be done by virtue hereof, and hereby revokes any and all proxies heretofore given by the undersigned to vote at the meeting. The undersigned acknowledges receipt of the Notice of Annual Meeting and the Proxy Statement accompanying such notice. CONTINUED AND TO BE SIGNED ON REVERSE SIDE . Proxy BIOLASE TECHNOLOGY, INC.