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Biolase, Inc. v. Oracle Partners, L.P.

Supreme Court of Delaware

June 12, 2014

BIOLASE, Inc., a Delaware corporation, Defendant/Counterclaim Plaintiff-Below, Appellant/Cross-Appellee,
v.
ORACLE PARTNERS, L.P., a Delaware limited partnership, Plaintiff/Counterclaim Defendant-Below, Appellee/Cross-Appellant

Submitted June 11, 2014

Case Closed June 17, 2014.

Court Below: Court of Chancery in the State of Delaware. C.A. No. 9438-VCN.

Stephen C. Norman, Esquire, Angela C. Whitesell, Esquire, Potter Anderson & Corroon LLP, Wilmington, Delaware, for Defendant/Counterclaim Plaintiff-Below, Appellant/Cross-Appellee.

Of Eric Landau, Esquire, Travis Biffar, Esquire, Kevin H. Logan, Esquire, Jones Day, Irvine, California, for Defendant/Counterclaim Plaintiff-Below, Appellant/Cross-Appellee.

Kenneth J. Nachbar, Esquire, Bradley D. Sorrels, Esquire, Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware, Plaintiff/Counterclaim Defendant-Below, Appellee/Cross-Appellant.

Of Steven E. Cohen, Esquire, Kane Kessler, P.C., New York, New York, for Plaintiff/Counterclaim Defendant-Below, Appellee/Cross-Appellant.

Before STRINE, Chief Justice, BERGER, and RIDGELY, Justices.

OPINION

Page 1030

STRINE, Chief Justice:

I. Introduction

This expedited appeal arises out of a dispute in the Court of Chancery under 8 Del. C. § 225 over the membership of the board of directors of Biolase, Inc. (" Biolase" ). The Court of Chancery resolved the dispute by finding that the Biolase board of directors currently consists of five directors, including Paul Clark. The Court of Chancery concluded that Clark was appointed to the Biolase board after a previous director, Alexander Arrow, resigned through oral statements at a board meeting on February 28, 2014. Federico Pignatelli, Biolase's Chief Executive Officer and Chairman, planned Arrow's resignation and Clark's appointment to the board, and a press release issued by Biolase after the board meeting quoted Pignatelli as saying he was " thrilled" with Clark's appointment to the board. But Pignatelli quickly reversed course when he learned that Clark had aligned himself with a faction of the board that wanted to remove Pignatelli from his position as CEO. Pignatelli argued that because Arrow's resignation at the board meeting was given orally and was not reduced to writing before Clark was appointed to fill the vacancy created by Arrow's resignation, Clark had not been properly appointed to the board under 8 Del. C. § 141(b).

The appellee, Oracle Partners, L.P. (" Oracle" ), Biolase's largest stockholder, brought this action against Biolase seeking a declaration that, among other things, Arrow had resigned from the Biolase board and been replaced by Clark at the February 28, 2014 board meeting. Biolase is, in essence, a nominal party because the underlying question in the litigation involves who properly sits on the Biolase board. Thus, although Biolase is the nominal appellant, we refer to the appellant as the ...


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