EX-10.4






[LETTERHEAD OF RODMAN & RENSHAW, LLC]




June 22, 2011



STRICTLY CONFIDENTIAL



Federico Pignatelli


Chairman and Chief Executive Officer


BIOLASE Technology, Inc.


4 Cromwell


Irvine, CA 92618



Dear Federico Pignatelli:



This letter (the “Agreement”) constitutes the agreement between BIOLASE Technology, Inc. (the
“Company”) and Rodman & Renshaw, LLC (“Rodman”) that Rodman shall serve as the exclusive placement
agent (the “Services”) for the Company, on a reasonable best efforts basis, in connection with the
proposed offer and placement (the “Offering”) by the Company of securities of the Company (the
“Securities”). The terms of the Offering and the Securities shall be mutually agreed upon by the
Company and the investors and nothing herein implies that Rodman would have the power or authority
to bind the Company or an obligation for the Company to issue any Securities or complete the
Offering. The Company expressly acknowledges and agrees that the execution of this Agreement does
not constitute a commitment by Rodman to purchase the Securities and does not ensure the successful
placement of the Securities or any portion thereof or the success of Rodman with respect to
securing any other financing on behalf of the Company.



A. Fees and Expenses. In connection with the Services described above, the Company
shall pay to Rodman the following compensation:



1. Placement Agent’s Fee. The Company shall pay to Rodman a cash placement fee (the
“Placement Agent’s Fee”) equal to 5% of the aggregate purchase price paid by each purchaser of
Securities that are placed in the Offering. The Placement Agent’s Fee shall be paid at the closing
of the Offering (the “Closing”) from the gross proceeds of the Securities sold. It is acknowledged
and agreed by the Company and Rodman that they are parties to an engagement letter, dated April 7,
2011 (the “April Engagement Letter”) and that the investors listed on Exhibit A attached
hereto shall hereafter be covered by this Agreement and the Company shall pay Rodman a cash
placement fee of 5% of the aggregate purchase price paid by such investors that are placed in the
Offering.



2. Warrants. As additional compensation for the Services, the Company shall issue to
Rodman or its designees at the Closing, warrants (the “Rodman Warrants”) to purchase that number of
shares of common stock of the Company (“Shares”) equal to 3.5% of the aggregate number of Shares
placed in the Offering, plus any Shares underlying any convertible Securities placed in the
Offering to such purchasers. The Rodman Warrants shall have the same terms, including exercise
price and registration rights, as the warrants issued to investors (“Investors”) in the Offering.
If no warrants are issued to Investors, the Rodman Warrants shall have an exercise price equal to
$6.50, an exercise period of three years and those terms, conditions, and registration rights for
the Shares underlying the Rodman Warrants equivalent to those granted with respect to the
Securities.



3. Expenses. In addition to any fees payable to Rodman hereunder, but only if an
Offering is consummated, the Company hereby agrees to reimburse Rodman for all reasonable travel
and other out-of-pocket expenses actually incurred in connection with Rodman’s engagement,
including the reasonable fees and expenses of Rodman’s counsel. Such reimbursement shall be
limited to $50,000 without prior written approval by the Company and shall be paid at the Closing
from the gross proceeds of the Securities sold (provided, however, that such expense cap in no way
limits or impairs the indemnification and contribution provisions of this Agreement).



B. Term and Termination of Engagement. The term (the “Term”) of Rodman’s engagement
will begin on the date hereof and end 15 days after the receipt by either party hereto of written
notice of termination; provided that, if an Offering occurs during the Term, no such notice may be
given by the Company until December 31, 2011. Notwithstanding anything to the contrary contained
herein, the provisions concerning indemnification, contribution and the Company’s obligations to
pay fees and reimburse expenses contained herein will survive any expiration or termination of this
Agreement.



C. Fee Tail. Rodman shall be entitled to a Placement Agent’s Fee and Rodman Warrants,
calculated in the manner provided in Paragraph A, with respect to any public or private offering or
other financing or capital-raising transaction of any kind (“Tail Financing”) to the extent that
such financing or capital is provided to the Company by investors whom Rodman had introduced,
directly or indirectly, to the Company during the Term or that are listed on Exhibit A
attached hereto, if such Tail Financing is consummated at any time prior to December 31, 2011 (the
“Tail Period”).



D. Use of Information. The Company will furnish Rodman such written information as
Rodman reasonably requests in connection with the performance of its services hereunder. The
Company understands, acknowledges and agrees that, in performing its services hereunder, Rodman
will use and rely entirely upon such information as well as publicly available information
regarding the Company and other potential parties to an Offering and that Rodman does not assume
responsibility for independent verification of the accuracy or completeness of any information,
whether publicly available or otherwise furnished to it, concerning the Company or otherwise
relevant to an Offering, including, without limitation, any financial information, forecasts or
projections considered by Rodman in connection with the provision of its services.



E. Publicity. In the event of the consummation or public announcement of any
Offering, Rodman shall have the right to disclose its participation in such Offering, including,
without limitation, the placement at its cost of “tombstone” advertisements in financial and other
newspapers and journals.



F. Securities Matters. The Company shall be responsible for any and all compliance
with the securities laws applicable to it, including Regulation D and the Securities Act of 1933,
as amended (the “Securities Act”), and Rule 506 promulgated thereunder, and unless otherwise agreed
in writing, all state securities (“blue sky”) laws. Rodman agrees to cooperate with counsel to the
Company in that regard.



G. Indemnity.



1. In connection with the Company’s engagement of Rodman as placement agent, the Company
hereby agrees to indemnify and hold harmless Rodman and its affiliates, and the respective
controlling persons, directors, officers, members, shareholders, agents and employees of any of the
foregoing (collectively the “Indemnified Persons”), from and against any and all claims, actions,
suits, proceedings (including those of shareholders), damages, liabilities and expenses incurred by
any of them (including the reasonable fees and expenses of counsel), as incurred, (collectively a
“Claim”), that are (A) related to or arise out of (i) any actions taken or omitted to be taken
(including any untrue statements made or any statements omitted to be made) by the Company, or (ii)
any actions taken or omitted to be taken by any Indemnified Person in connection with the Company’s
engagement of Rodman, or (B) otherwise relate to or arise out of Rodman’s activities on the
Company’s behalf under Rodman’s engagement, and the Company shall reimburse any Indemnified Person
for all expenses (including the reasonable fees and expenses of counsel) as incurred by such
Indemnified Person in connection with investigating, preparing or defending any such claim, action,
suit or proceeding, whether or not in connection with pending or threatened litigation in which any
Indemnified Person is a party. The Company will not, however, be responsible for any Claim that is
finally judicially determined to have resulted from the gross negligence or willful misconduct of
any person seeking indemnification for such Claim. The Company further agrees that no Indemnified
Person shall have any liability to the Company for or in connection with the Company’s engagement
of Rodman except for any Claim incurred by the Company as a result of such Indemnified Person’s
gross negligence or willful misconduct.



2. The Company further agrees that it will not, without the prior written consent of Rodman
(not to be unreasonably withheld), settle, compromise or consent to the entry of any judgment in
any pending or threatened Claim in respect of which indemnification may be sought hereunder
(whether or not any Indemnified Person is an actual or potential party to such Claim), unless such
settlement, compromise or consent includes an unconditional, irrevocable release of each
Indemnified Person from any and all liability arising out of such Claim.



3. Promptly upon receipt by an Indemnified Person of notice of any complaint or the assertion
or institution of any Claim with respect to which indemnification is being sought hereunder, such
Indemnified Person shall notify the Company in writing of such complaint or of such assertion or
institution but failure to so notify the Company shall not relieve the Company from any obligation
it may have hereunder, except and only to the extent such failure results in the forfeiture by the
Company of substantial rights and defenses. If the Company so elects or is requested by such
Indemnified Person, the Company will assume the defense of such Claim, including the employment of
counsel reasonably satisfactory to such Indemnified Person and the payment of the fees and expenses
of such counsel. In the event, however, that legal counsel to such Indemnified Person reasonably
determines that having common counsel would present such counsel with a conflict of interest or if
the defendant in, or target of, any such Claim, includes an Indemnified Person and the Company, and
legal counsel to such Indemnified Person reasonably concludes that there may be legal defenses
available to it or other Indemnified Persons different from or in addition to those available to
the Company, then such Indemnified Person may employ its own separate counsel to represent or
defend him, her or it in any such Claim and the Company shall pay the reasonable fees and expenses
of such counsel. Notwithstanding anything herein to the contrary, if the Company fails timely or
diligently to defend, contest, or otherwise protect against any Claim, the relevant Indemnified
Party shall have the right, but not the obligation, to defend, contest, compromise, settle, assert
crossclaims, or counterclaims or otherwise protect against the same, and shall be fully indemnified
by the Company therefor, including without limitation, for the reasonable fees and expenses of its
counsel and all amounts paid as a result of such Claim or the compromise or settlement thereof. In
addition, with respect to any Claim in which the Company assumes the defense, the Indemnified
Person shall have the right to participate in such Claim and to retain his, her or its own counsel
therefor at his, her or its own expense.



4. The Company agrees that if any indemnity sought by an Indemnified Person hereunder is held
by a court to be unavailable for any reason then (whether or not Rodman is the Indemnified Person),
the Company and Rodman shall contribute to the Claim for which such indemnity is held unavailable
in such proportion as is appropriate to reflect the relative benefits to the Company, on the one
hand, and Rodman on the other, in connection with Rodman’s engagement referred to above, subject to
the limitation that in no event shall the amount of Rodman’s contribution to such Claim exceed the
amount of fees actually received by Rodman from the Company pursuant to Rodman’s engagement. The
Company hereby agrees that the relative benefits to the Company, on the one hand, and Rodman on the
other, with respect to Rodman’s engagement shall be deemed to be in the same proportion as (a) the
total value paid or proposed to be paid or received by the Company or its stockholders as the case
may be, pursuant to the Offering (whether or not consummated) for which Rodman is engaged to render
services bears to (b) the fee paid or proposed to be paid to Rodman in connection with such
engagement.



5. The Company’s indemnity, reimbursement and contribution obligations under this Agreement
(a) shall be in addition to, and shall in no way limit or otherwise adversely affect any rights
that any Indemnified Party may have at law or at equity and (b) shall be effective whether or not
the Company is at fault in any way.



H. Limitation of Engagement to the Company. The Company acknowledges that Rodman has
been retained only by the Company, that Rodman is providing services hereunder as an independent
contractor (and not in any fiduciary or agency capacity) and that the Company’s engagement of
Rodman is not deemed to be on behalf of, and is not intended to confer rights upon, any
shareholder, owner or partner of the Company or any other person not a party hereto as against
Rodman or any of its affiliates, or any of its or their respective officers, directors, controlling
persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)), employees or agents. Unless otherwise
expressly agreed in writing by Rodman, no one other than the Company is authorized to rely upon
this Agreement or any other statements or conduct of Rodman, and no one other than the Company is
intended to be a beneficiary of this Agreement. The Company acknowledges that any recommendation
or advice, written or oral, given by Rodman to the Company in connection with Rodman’s engagement
is intended solely for the benefit and use of the Company’s management and directors in considering
a possible Offering, and any such recommendation or advice is not on behalf of, and shall not
confer any rights or remedies upon, any other person or be used or relied upon for any other
purpose. Rodman shall not have the authority to make any commitment binding on the Company. The
Company, in its sole discretion, shall have the right to reject any investor introduced to it by
Rodman. The Company agrees that it will perform and comply with the covenants and other
obligations set forth in the purchase agreement and related transaction documents between the
Company and the investors in the Offering, and that Rodman will be entitled to rely on the
representations, warranties, agreements and covenants of the Company contained in such purchase
agreement and related transaction documents as if such representations, warranties, agreements and
covenants were made directly to Rodman by the Company.



I. Limitation of Rodman’s Liability to the Company. Rodman and the Company further
agree that neither Rodman nor any of its affiliates or any of its or their respective officers,
directors, controlling persons (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act), employees or agents shall have any liability to the Company, its security
holders or creditors, or any person asserting claims on behalf of or in the right of the Company
(whether direct or indirect, in contract, tort, for an act of negligence or otherwise) for any
losses, fees, damages, liabilities, costs, expenses or equitable relief arising out of or relating
to this Agreement or the Services rendered hereunder, except for losses, fees, damages,
liabilities, costs or expenses that arise out of or are based on any action of or failure to act by
Rodman and that are finally judicially determined to have resulted solely from the gross negligence
or willful misconduct of Rodman.



J. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be fully performed
therein. Any disputes that arise under this Agreement, even after the termination of this
Agreement, will be heard only in the state or federal courts located in the City of New York, State
of New York. The parties hereto expressly agree to submit themselves to the jurisdiction of the
foregoing courts in the City of New York, State of New York. The parties hereto expressly waive any
rights they may have to contest the jurisdiction, venue or authority of any court sitting in the
City and State of New York. In the event of the bringing of any action, or suit by a party hereto
against the other party hereto, arising out of or relating to this Agreement, the party in whose
favor the final judgment or award shall be entered shall be entitled to have and recover from the
other party the costs and expenses incurred in connection therewith, including its reasonable
attorneys’ fees. Any rights to trial by jury with respect to any such action, proceeding or suit
are hereby waived by Rodman and the Company.



K. Notices. All notices hereunder will be in writing and sent by certified mail, hand
delivery, overnight delivery or fax, if sent to Rodman, to the address set forth on the first page
hereof, fax number (646) 841-1640, Attention: General Counsel, and if sent to the Company, to the
address on the first page hereof, fax number (949) 340-7379, Attention: General Counsel. Notices
sent by certified mail shall be deemed received five days thereafter, notices sent by hand delivery
or overnight delivery shall be deemed received on the date of the relevant written record of
receipt, and notices delivered by fax shall be deemed received as of the date and time printed
thereon by the fax machine.



L. Miscellaneous. The Company represents that it is free to enter into this Agreement
and the transactions contemplated hereby, that it will act in good faith, and that it will not
hinder Rodman’s efforts hereunder. This Agreement shall not be modified or amended except in
writing signed by Rodman and the Company. This Agreement shall be binding upon and inure to the
benefit of Rodman and the Company and their respective assigns, successors, and legal
representatives. This Agreement constitutes the entire agreement of Rodman and the Company, and
supersedes any prior agreements, with respect to the subject matter hereof. If any provision of
this Agreement is determined to be invalid or unenforceable in any respect, such determination will
not affect such provision in any other respect, and the remainder of the Agreement shall remain in
full force and effect. This Agreement may be executed in counterparts (including facsimile or .pdf
counterparts), each of which shall be deemed an original but all of which together shall constitute
one and the same instrument.



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In acknowledgment that the foregoing correctly sets forth the understanding reached by Rodman
and the Company, please sign in the space provided below, whereupon this letter shall constitute a
binding Agreement as of the date indicated above.



Very truly yours,



RODMAN & RENSHAW, LLC



By /s/ John Borer



John Borer



Head of Investment Banking



Accepted and Agreed:



BIOLASE TECHNOLOGY, INC



By /s/ Federico Pignatelli

Federico Pignatelli

Chief Executive Officer




EXHIBIT A




Cranshire Capital LP, or affiliated funds


Hudson Bay Capital Management, or affiliated funds




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