exv10w2



 





Exhibit 10.2




ADDENDUM 1 TO LICENSE AND DISTRIBUTION AGREEMENT




     THIS ADDENDUM 1 TO LICENSE AND DISTRIBUTION AGREEMENT (the “Addendum”) is made and dated as of
the Effective Date set forth below by and among BIOLASE Technology, Inc., a Delaware corporation
(the “Company”) and Henry Schein, Inc., a Delaware corporation (the “Distributor”) with reference
to the following facts:



     A. Distributor and Company entered into that certain License and Distribution Agreement (the
“Agreement”) dated as of August 8, 2006; and



     B. Distributor and Company desire to add provisions to the Agreement to provide for the
distribution by Distributor of the Company’s new ezlase diode laser system and associated
accessories and consumables.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:



AGREEMENT





	1.	 	This Addendum shall become a part of the Agreement, and shall fully address all references to
ezlase in the Agreement, including, but not limited to, Recital A and Sections 1.2 and 6.1 of
the Agreement.
	 
	2.	 	This Addendum shall be effective April 1, 2007 (the “Effective Date”); however, purchases of
ezlase from Company in March 2007 shall be considered made as part of this Addendum and shall
apply toward Ezlase Minimums, as such term is defined below, for the period April 1, 2007
through March 31, 2008.
	 
	3.	 	Company’s ezlase diode laser system and associated accessories and consumables shall be added
to the definition of Products, but not to the definition of “Systems” (collectively, “Ezlase
Products”), in the Agreement.
	 
	4.	 	Distributor shall be the exclusive distributor of Ezlase Products in the Territory, subject
to performance criteria set forth in this Addendum. Company shall not sell the Ezlase Products
on a direct basis in the Territory, except as permitted by Section 5.20 of the Agreement,
which section the Parties hereby agree apply to the ezlase diode laser system despite the fact
that Ezlase Products are specifically excluded from the definition of Systems. For purposes of
applying Section 5.20 of the Agreement to the ezlase diode laser system, the Maximum Direct
Amount shall be $****.
	 
	5.	 	There shall be separate minimum purchase requirements for the ezlase laser system (“Ezlase
Minimum(s)”). Purchases of the ezlase laser system by Distributor shall not be credited toward
Minimum Purchase Requirements as such term is defined in the Agreement.




 



****Certain confidential information contained in this document, marked with four asterisks,
has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.




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	 	a.	 	The Ezlase Minimum for the period April 1, 2007 through March 31, 2008
(“First Ezlase Year”) shall initially be **** units.
	 
	 	b.	 	Distributor and Company shall review actual unit sales of ezlase from
Distributor to Customers for the quarter ending June 30, 2007. Parties shall negotiate
in good faith as to the need for a modification to the aforementioned Ezlase Minimum
for the First Ezlase Year, and such negotiation shall be substantially based ****.
	 
	 	 	 	Beginning on March 1, 2008 and continuing for each April 1 to March 31 year (an “Ezlase
Year”) in which Distributor will have exclusive distribution rights for Ezlase
Products, on March 1 Company and Distributor shall negotiate in good faith an Ezlase
Minimum for the ensuing Ezlase Year.
	 
	 	 	 	In the event that, at the end of an Ezlase Year, Distributor has not purchased the
Ezlase Minimum for the period, Company shall have the following options:






	 	i.	 	Continue on an exclusive basis for ****; or
	 
	 	ii.	 	Upon **** written notice:






	 	1.	 	Convert Distributor’s rights to distribute
Ezlase Products to a non-exclusive basis but allow continued
non-exclusive distribution for a minimum period of ****, after which
period Company has the option to withdraw Distributor’s rights to
distribute Ezlase Products; and
	 
	 	2.	 	Reduce to **** the Distributor Discount on
the ezlase diode laser system and reduce to **** the Distributor
Discount on any other Ezlase Products.






	 	c.	 	On ****, the MSRP for the ezlase diode laser system shall be $****; the
Distributor Discount shall be ****; and the Distributor Purchase Price shall be $****.
The Parties agree that current median average selling prices for diode laser systems
in North America range from $****-$****. Prices for other Ezlase Products will be
provided by Company to Distributor.
	 
	 	d.	 	Notwithstanding anything herein or in the Agreement to the contrary, the sole
recourse for failure to purchase the Ezlase Minimum in any period is the remedy set
forth in Section 5(b) above.






	6.	 	Section 4.1 of the Agreement shall apply to Ezlase Products, except that the Warranty Period
for the ezlase laser system shall be a **** limited warranty from the date of shipment from
Company’s facility, as set forth in the warranty statement accompanying the product.
	 
	7.	 	Section 6.1 of the Agreement is hereby supplemented as follows:




 



****Certain confidential information contained in this document, marked with four asterisks,
has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.





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	 	a.	 	So long as Distributor has exclusive distribution rights for Ezlase Products,
not only will it not distribute any dental laser systems specifically intended for use
in soft-tissue dental procedures other than ****, but it further will not commence
distribution of any dental laser system specifically intended for use in soft-tissue
dental procedures which is provided by any supplier with which Distributor does not at
the date of this Addendum have an existing distribution arrangement. For the avoidance
of doubt, and solely serving as an example, a violation of this provision would
include, but not be limited to, the distribution by Distributor of the **** or the
**** manufactured by ****.
	 
	 	b.	 	In the event of a failure to comply with Section 6.1(a) above, Company may
apply the provisions set forth in Section 5(b) above, or immediately withdraw
Distributor’s rights to distribute Ezlase Products. In the event that Company elects
to withdraw Distributor’s rights to distribute Ezlase Products, Distributor shall have
the right to continue to sell its remaining inventory of Ezlase Products after the
date Company withdraws Distributor’s rights to distribute Ezlase Products. Such sales
of Ezlase Products by Distributor shall otherwise be subject to the terms and
conditions set forth in the Agreement and this Addendum.





     IN WITNESS WHEREOF, the parties have executed this Addendum effective as of the Effective
Date.



	 	 	 	 	 	 	 	 	 
	COMPANY	 	 	 	DISTRIBUTOR  
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	BIOLASE Technology, Inc.	 	 	 	Henry Schein, Inc.
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name:

	 	 	 	 	 	Name:	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Title:

	 	 	 	 	 	Title:	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Date:	 	 
	 

	 	 
	 	 	 	 	 	 




 



****Certain confidential information contained in this document, marked with four asterisks,
has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule
24b-2 of the Securities Exchange Act of 1934, as amended.





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