<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
____________
BriteSmile, Inc.
(Exact name of registrant as specified in its charter)
____________
Utah 87-0410364
(State or other jurisdiction I.R.S. Employer
of incorporation or organization) Identification No.
Airport Business Center
200 Diplomat Drive, Suite 204
Lester, PA 19113
(610) 362-1111
(Address of principal executive offices and Zip Code
and Telephone Number of Issuer)
Consultant Warrants
and
Revised 1997 Stock Option and Incentive Plan
(Full Title of the Plan)
________________________________
Michael F. Bonner
Chief Financial Officer
BriteSmile, Inc.
Airport Business Center
200 Diplomat Drive, Suite 204
Lester, PA 19113
(610) 362-1111
(Name, address and telephone number, including area code,
of agent for service)
Copies to:
Jeffrey M. Jones, Esq.
Durham, Jones & Pinegar, P.C.
50 South Main Street, Suite 850
Salt Lake City, Utah 84144
(801) 538-2424
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed
each class maximum maximum
of securities offering aggregate Amount of
to be Amount to be price per offering registration
registered registered(1) unit price(3) fee(4)
- ------------- -------------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Common Shares, 5,000 shares $ 9.00 $ 45,000
par value $.0001 per 5,000 shares $ 6.81 $ 34,050
share, subject 50,000 shares $ 6.625 $ 331,250
to stock options 26,500 shares $ 6.375 $ 168,937
granted to 300,000 shares $ 6.00 $ 1,800,000
employees and 2,000 shares $ 4.25 $ 8,500
directors 2,000 shares $ 3.00 $ 6,000
4,000 shares $ 2.9375 $ 11,750
22,000 shares $ 2.875 $ 63,250
400,000 shares $ 2.75 $ 1,100,000
892,000 shares $ 2.50 $ 2,230,000
106,600 shares $ 2.31 $ 246,246
715,000 shares $ 1.75 $ 1,251,250
2,000 shares $ 1.6875 $ 3,375
75,000 shares $ 1.50 $ 112,500
88,000 shares $ 1.25 $ 110,000
20,000 shares $ 1.0625 $ 21,250
312,000 shares $ 1.00 $ 312,000
Common Shares, 625,000 shares $ 1.75 $ 1,093,750
par value 5,000 shares $ 3.94 $ 19,700
$.0001 per 300,000 shares $ 1.1875 $ 356,250
share, subject
to stock options or
warrants granted to
consultants
Common Shares, 717,900 shares $ 8.50(2) $ 6,102,150
par value
$.0001 per
share, subject
to stock awards,
stock options, or
stock warrants
to be granted to
officers, directors,
or consultants
pursuant to the
Company's Revised
1997 Stock Option
Plan
- --------------------------------------------------------------------------------
$15,427,208 $ 4,288.76
</TABLE>
2
<PAGE>
- --------------------------------------------------------------------------------
(1) This Registration Statement also covers an indeterminate number of Common
Shares that may be issuable by reason of stock splits, stock dividends or
similar transactions in accordance with Rule 416 under the Securities Act of
1933, as amended.
(2) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, based upon the
average of the high and low prices of the Common Shares as reported on AMEX on
June 29, 1999(within 5 business days prior to the date of filing the
registration statement).
(3) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, based upon the price
at which the options may be exercised.
(4) $278 per $1,000,000 of aggregate offering price, pursuant to Section 6(b)
of the Securities Act of 1933.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of
this Registration Statement will be sent or given to employees and consultants
as specified by Rule 428(b)(1). Such documents are not required to be and are
not filed with the Securities and Exchange Commission (the "Commission") either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II of
this Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act of 1933, as amended (the
"Securities Act").
3
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
- ------ ---------------------------------------
The following documents filed with the Commission by BriteSmile, Inc.
(the "Company") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year
ended March 31, 1999; and
(b) Description of the class of securities of the Company to be
offered, (incorporated by reference to the Registration Statement of the Company
previously filed, pursuant to which the class of Common Stock of the Company was
registered under the Securities Exchange Act of 1934, as amended).
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
Item 4. Description of Securities.
- ------ -------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
- ------ --------------------------------------
None.
Item 6. Indemnification of Directors and Officers.
- ------ -----------------------------------------
Sections 16-10a-901 et. seq. of the Utah Business Corporation Act (the
"Utah Act"), together with Article 5 of the Bylaws of the Company, provide for
indemnification of the Company's directors, officers, employees, fiduciaries or
agents, subject to the Company's determination in each instance that
indemnification is in accordance with the standards set forth in the Utah Act
and in the Bylaws. The Company may purchase and maintain liability insurance on
behalf of a person who is or was a director, officer, employee, fiduciary, or
agent of the Company against liability asserted against or incurred by him or
her in that capacity or arising from his or her status as a director, officer,
employee, fiduciary, or agent, whether or not the Company would have power to
indemnify him or her against the same liability under the provisions of the
Bylaws. See Article 5 of the Company's Bylaws, which is incorporated herein by
reference and which qualifies the foregoing summary statement.
II-1
<PAGE>
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, or otherwise, the
Company has been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
Item 7. Exemption from Registration Claimed.
- ------ -----------------------------------
Not applicable.
Item 8. Exhibits.
- ------ --------
4(a) -- Revised 1997 Stock Option and Incentive Plan of BriteSmile, Inc.(the
"1997 Plan"), as amended as of January 22, 1999 (incorporated by
reference to exhibit 10.19 of the Annual Report on Form 10-KSB of the
Company for the fiscal year ended March 31, 1999).
4(b) -- Form of Option Agreement ("Director Option Agreement") between the
Company and certain directors of the Company, pursuant to which
directors receive options to purchase Common Stock of the Company
(filed herewith).
4(c) -- Form of Option Agreement ("Employee Option Agreement") between the
Company and certain employees of the Company, pursuant to which
employees receive options to purchase Common Stock of the Company
(filed herewith).
5 -- Opinion of Durham, Jones & Pinegar, P.C. regarding validity of Common
Stock issuable pursuant to the Revised 1997 Stock Option and Incentive
Plan.
23(a) -- Consent of Ernst & Young LLP.
23(b) -- Consent of Durham, Jones & Pinegar, P.C. (included in the opinion
filed as Exhibit 5 to this Registration Statement).
Item 9. Undertakings.
- ------ ------------
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
II-2
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Lester, Pennsylvania on July 2, 1999.
BRITESMILE, INC.
By /s/ Michael F. Bonner
----------------------------
Michael F. Bonner
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael F. Bonner his attorney-in-fact,
with the power of substitution, for him and in any and all capacities, to sign
any and all amendments to this Registration Statement (including post effective
amendments), and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact or his substitute or
substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Anthony M. Pilaro Director; Chairman May 26, 1999
- ------------------------------ of the Board
Anthony M. Pilaro
/s/ John L. Reed President, CEO, and July 2, 1999
- ------------------------------ Director
John L. Reed
/s/ Richard V. Trefz Director; President/ May 26, 1999
- ------------------------------ Manufacturing Division
Richard V. Trefz
/s/ R. Eric Montgomery Director July 2, 1999
- ------------------------------
R. Eric Montgomery
/s/ Linda S. Oubre Director; President/ May 24, 1999
- ------------------------------ Center Division
Linda S. Oubre
/s/ Bruce V. Wainright, D.D.S. Director May 25, 1999
- ------------------------------
Bruce V. Wainright
II-4
<PAGE>
/s/Jennifer Scott Director May 26, 1999
- ------------------------
Jennifer Scott
/s/Michael F. Bonner Chief Financial Officer July 2, 1999
- ------------------------
Michael F. Bonner
II-5
<PAGE>
EXHIBIT INDEX
-------------
Exhibits
- --------
4(a) -- Revised 1997 Stock Option and Incentive Plan of BriteSmile, Inc., as
amended as of January 22, 1999.
4(b) -- Form of Option Agreement ("Director Option Agreement") between the
Company and certain directors of the Company, pursuant to which
directors receive options to purchase Common Stock of the Company.
4(c) -- Form of Option Agreement ("Employee Option Agreement") between the
Company and certain employees of the Company, pursuant to which
employees receive options to purchase Common Stock of the Company.
5 -- Opinion of Durham, Jones & Pinegar, P.C. regarding validity of Common
Stock issuable pursuant to the Revised 1997 Stock Option and Incentive
Plan.
23(a) -- Consent of Ernst & Young LLP.
23(b) -- Consent of Durham, Jones & Pinegar, P.C. (included in the opinion
filed as Exhibit 5 to this Registration Statement).
<PAGE>
BRITESMILE, INC.
DIRECTOR STOCK OPTION AND STOCK APPRECIATION RIGHTS AGREEMENT
(Revised 1997 Stock Option and Incentive Plan)
Participant: _____________________
Date of Grant: ___________________
Number of Covered Shares: ________
Exercise Price Per Share: ________
This Stock Option and Stock Appreciation Rights Agreement
("Agreement"), is entered into as of the _______ day of ____________, 19____,
between BriteSmile, Inc., a Utah corporation (the "Company"), and _____________
("Optionee").
WHEREAS, the Company has adopted the BriteSmile, Inc. Revised 1997
Stock Option and Incentive Plan (the "Plan") and has approved the granting to
certain directors of the Company of nonqualified stock options and related
alternative stock appreciation rights to purchase common stock of the Company
("Common Stock"); and
WHEREAS, Optionee is a director of the Company, and the Company
desires to secure or increase Optionee's stock ownership of the Company in order
to increase Optionee's incentive and personal interest in the welfare of the
Company.
NOW, THEREFORE, in consideration of the premises, covenants and
agreements hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
have agreed and do hereby agree as follows:
1. Grant of Options. The Company hereby grants to Optionee options
----------------
(the "Options") to purchase all or any part of an aggregate amount of
____________________ (________) shares of the Common Stock of the Company at a
price of $____________ per share, on the terms and conditions hereinafter set
forth, all of which Options vest immediately upon the date hereof, subject to
any other restrictions on exercise set forth in this Agreement.
2. Term of Options. Except as otherwise provided in Section 4
---------------
below, the Options shall be exercisable, in whole or in part, and at any time
within ten (10) years after the date of grant thereof, at which time the Options
shall terminate and not be exercisable thereafter. Unless the Company is advised
otherwise by its securities counsel, at least six (6) months must elapse from
the date of grant of the Option to the date of disposition by Optionee of the
shares of Common Stock underlying the Option.
<PAGE>
3. Grant of Alternate Stock Appreciation Rights. Concurrently with
--------------------------------------------
the grant of the Options pursuant to paragraph 1, the Company hereby grants to
Optionee with respect to each share of Common Stock subject to the Options,
related Alternate Rights ("Alternate Rights"). Each Alternate Right entitles
Optionee, in lieu of exercising the Options granted herein, to elect to receive
from the Company, in the form of Common Stock, the value of the appreciation in
the Common Stock underlying the Options.
(a) Entitlement Upon Exercise of Alternate Rights. Upon the
---------------------------------------------
exercise of an Alternate Right, Optionee shall be entitled to receive from the
Company the amount, if any, by which the Fair Market Value (as defined in the
Plan) of a share of Common Stock on the exercise date exceeds the Fair Market
Value of a share of Common Stock on the date the Options related to the
Alternate Rights were granted.
(b) Payment in the Form of Common Stock. Payment pursuant to
-----------------------------------
paragraph 3(a) shall be made by the Company in the form of Common Stock. The
exercise of any Alternate Rights shall cancel an equal number of Options related
to said Alternate Rights. All shares issued upon the exercise of Alternate
Rights shall be issued with the rights and restrictions specified in the Plan
for shares issued pursuant to the exercise of Options.
(c) Rights Subject to Terms of Related Options. Alternate
------------------------------------------
Rights shall be exercisable only to the same extent and subject to the same
conditions and within the same terms and vesting schedules, as the Options
related thereto are exercisable. Accordingly, unless the context indicates
----------------------------
otherwise, reference in this Agreement to "Options" shall include the Alternate
- ---------
Rights associated therewith.
- ---------------------------
4. Exercise of Options. The Options or any portion thereof may be
-------------------
exercised by Optionee paying the purchase price of any shares with respect to
which the Options are being exercised by cash, certified check, bank draft or
postal or express money order, or at the request of Optionee, prior-acquired
shares of Common Stock valued at their fair market value on the date prior to
exercise, in each case delivered with a written notice of exercise which shall:
(a) State the number of shares being exercised, the name,
address and social security number of each person for whom the stock certificate
or certificates for such shares of the Common Stock are to be registered;
(b) Contain any representations and agreements as to Optionee's
investment intent with respect to the shares exercised as may be satisfactory to
the Company's counsel; and
(c) Be signed by the person or persons entitled to exercise the
Options and, if the Options are being exercised by any person or persons other
than Optionee, be
2
<PAGE>
accompanied by proof satisfactory to counsel for the Company of the right of
such person or persons to exercise the Options.
As a condition to the exercise of the Options, the Company may require
the person exercising the Options to make any representation and warranty to the
Company that may be required by any applicable law or regulation.
5. Termination of Directorship. If Optionee ceases to be a Director
---------------------------
of the Company for any reason, any outstanding Options held by the Director
shall be exercisable according to the following provisions:
(a) If Optionee ceases to be a Director for any reason other
than resignation or removal for cause, subject to the provisions regarding death
of Optionee in paragraphs d-f below, any outstanding Option held by Optionee at
such time shall be exercisable by Optionee (but only if exercisable immediately
prior to ceasing to be a Director) at any time prior to the expiration date of
such Option or within three years after the date the grantee ceases to be a
Director, whichever is the shorter period;
(b) If during his term of office as a Director Optionee resigns
from the Board, any outstanding Option held by Optionee which is not exercisable
by him immediately prior to resignation shall terminate as of the date of
resignation, and any outstanding Option held by Optionee which is exercisable
immediately prior to resignation shall be exercisable at any time prior to the
expiration date of such Option or within six months after the date of
resignation, whichever is shorter;
(c) If during his term of office as a Director Optionee is
removed from office for cause, any outstanding Option held by Optionee which is
not exercisable by him immediately prior to removal, and any outstanding Option
held by Optionee which is exercisable immediately prior to removal, shall
terminate as of the date of removal for cause and may not be exercised;
(d) Following the death of Optionee during service as a Director
of the Company, any outstanding Option held by him at the time of death (whether
or not exercisable by the grantee immediately prior to death) shall be
exercisable by the person entitled to do so under the will of Optionee, or, if
Optionee shall fail to make testamentary disposition of the Option or shall die
intestate, by the legal representative of Optionee at any time prior to the
expiration date of such Option or within three years after the date of death of
Optionee, whichever is the shorter period;
(e) Following the death of Optionee after ceasing to be a
Director and during a period when an Option is exercisable under (b) above, the
Option shall be exercisable by such person entitled to do so under the will of
Optionee or by such legal representative at any
3
<PAGE>
time prior to the expiration date of the Option or within one year after the
date of death, whichever is the shorter period;
(f) Following the death of Optionee after ceasing to be a
Director and during a period when an Option is exercisable under clause (a)
above, the Option shall be exercisable by such person entitled to do so under
the will of Optionee or by such legal representative at any time during the
shorter of the following two periods: (i) until the expiration date of the
Option or (ii) until three years after the grantee ceased being a Director or
one year after the date of death of Optionee, (whichever is longer);
For purposes of this Agreement, "retirement" and "disability" shall be
as determined by the Company or the Committee which administers the Plan.
Removal "for cause" shall mean willful misconduct or dishonesty or conviction of
or failure to contest prosecution for a felony, or excessive absenteeism
unrelated to illness.
6. Transfer of Options. Unless the Company, upon advice of its
-------------------
securities counsel, directs otherwise, the Options may not be assigned or
transferred in any manner except upon the death of Optionee by will or by the
laws of descent and distribution. During the lifetime of Optionee, the Options
shall be exercisable only by Optionee.
7. Reservation of Shares. The Company, during the term hereof, will
---------------------
at all times reserve and keep available, and will seek or obtain from any
regulatory body having jurisdiction any requisite authority in order to issue
and sell such number of shares of its Common Stock as shall be sufficient to
satisfy the requirements hereof. The inability of the Company to obtain from
any regulatory body having jurisdiction the authority deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any shares of stock
hereunder shall relieve the Company of any liability in respect of the
nonissuance or sale of such stock as to which such requisite authority shall not
have been obtained.
8. Application of Section 16(b). The parties acknowledge that
----------------------------
inasmuch as Optionee is a director of the Company, the grant to Optionee of
Options hereunder, or Optionee's sale of shares underlying the Options, may,
unless the Plan is qualified under Rule 16b-3 of the SEC, subject Optionee to
liability under the insider trading prohibitions of Section 16(b) of the
Securities Exchange Act of 1934, if Optionee purchases or sells Common Stock of
the Company within six months before or after the grant of the Options, or
within six months before or after the sale of the shares underlying the Options.
This acknowledgment is for informational purposes only and is not to be
construed as increasing, limiting or describing the rights and obligations of
the parties hereunder.
9. Restriction on Option Exercise. Notwithstanding any contrary
------------------------------
provision hereof, the Options may not be exercised by Optionee unless the shares
to be acquired by Optionee have been registered under the Securities Act of 1933
(the "Act"), and any other
4
<PAGE>
applicable securities laws of any other state, or the Company receives an
opinion of counsel (which may be counsel for the Company) reasonably acceptable
to the Company stating that the exercise of the Options and the issuance of
shares pursuant to the exercise is registered or exempt from such registration
requirements. Optionee shall represent that unless and until the shares have
--------------------------------
been registered under the Act and applicable state securities laws: (1) Optionee
- -----------------------------
is acquiring the shares for investment purposes only and without the intent of
making any sale or disposition thereof; (2) Optionee has been advised and
understands that the shares have not been registered for sale pursuant to
federal and state securities laws and are "restricted securities" under such
laws; and (3) Optionee acknowledges that the shares will be subject to stop
transfer instructions and bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR UNDER ANY OTHER STATE SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF
REGISTRATION OR THE AVAILABILITY OF AN EXEMPTION FROM
SUCH REGISTRATION. NO OFFER, SALE OR TRANSFER MAY TAKE
PLACE WITHOUT PRIOR WRITTEN APPROVAL OF THE COMPANY BEING
AFFIXED HERETO. IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT, SUCH APPROVAL SHALL BE GRANTED
ONLY IF THE COMPANY HAS RECEIVED AN OPINION OF
SHAREHOLDER'S COUNSEL AT SHAREHOLDER'S EXPENSE
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT THIS
CERTIFICATE MAY BE LAWFULLY TRANSFERRED PURSUANT TO AN
EXEMPTION FROM REGISTRATION.
10. Withholding of Taxes. The Options may not be exercised unless
--------------------
Optionee has paid or has made provision satisfactory to the Company for payment
of, federal, state and local income taxes, or any other taxes (other than stock
transfer taxes) which the Company may be obligated to collect as a result of the
issue or transfer of Common Stock upon such exercise of the Options. In its
sole discretion, and at the request of Optionee, the Company may permit Optionee
(other than an Optionee who would be subject to Section 16(b) of the Exchange
Act) to satisfy the obligation imposed by this Section, in whole or in part, by
instructing the Company to withhold up to that number of shares otherwise
issuable to Optionee with a fair market value equal to the amount of tax to be
withheld.
11. Merger. The Company hereby agrees that, in the event of the
------
Company's liquidation, reorganization, separation, merger or consolidation into,
or acquisition of property or
5
<PAGE>
stock by another corporation, the Company will use its best efforts to cause a
substitution or assumption of the Options.
12. Antidilution. The aggregate number of shares of Common Stock
------------
available for issuance under the Options, and the price per share, shall all be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock subsequent to the date of this Agreement resulting from a
recapitalization, reorganization, merger, consolidation or similar transaction
as provided in the Plan. Upon dissolution or liquidation of the Company, or
upon a merger or consolidation in which the Company is not the surviving
corporation (unless otherwise agreed in connection with the merger), the Options
shall terminate.
13. No Rights as a Stockholder. Optionee or a permitted transferee
--------------------------
of the Options shall have no rights as a stockholder with respect to any shares
covered by the Options until the date as of which stock is issued following
exercise of such option. Except as provided in this Agreement, no adjustment
shall be made for dividends (ordinary or extraordinary, whether in cash,
securities or other property) or any other distributions for which the record
date is prior to the date as of which such stock is issued.
14. No Employment Rights. This Agreement is not an employment
--------------------
agreement or contract and does not grant any employment rights to Optionee.
15. Other Provisions. The Company may, as a condition precedent to
----------------
the exercise of the Options, require Optionee (including, in the event of
Optionee's death, his legal representatives, legatees or distributees) to enter
into such agreements or to make such representations as may be required to make
lawful the exercise of the Options and the ultimate disposition of the shares
acquired by such exercise.
16. Notices. Any notice which either of the parties hereto is
-------
required or permitted to give to the other must be in writing and may be given
by personal delivery or by mailing the same by registered or certified mail,
return receipt requested, to the party to which or to whom the notice is
directed, at the address each party designates in writing. Any notice mailed to
such address shall be effective when deposited in the mail, duly addressed and
postage prepaid, notwithstanding failure by the addressee thereof to receive the
mailed notice.
17. Governing Law. All transactions contemplated hereunder and all
-------------
rights of the parties hereto shall be governed as to validity, construction,
enforcement and in all other respects by the laws and decisions of the State of
Utah.
18. Titles. The titles of the sections of this Agreement are
------
inserted only as a matter of convenience and for reference, and in no way
define, limit or describe the scope of this Agreement or the intent of any
provisions hereof.
6
<PAGE>
19. Amendment. This Agreement shall not be modified or amended
---------
except by written agreement signed by all of the parties hereto.
20. Attorney's Fees and Costs of Enforcement. If any party to this
----------------------------------------
Agreement shall incur any costs resulting from enforcement of this Agreement,
the defaulting party shall be liable to the prevailing party for such costs.
Costs, as used herein, shall include costs of enforcement, interpretation, or
collection, including without limitation, reasonable attorney's fees, court
costs, collection charges, travel and other related or similar expenses.
21. Severability of Provisions. Any provision of this Agreement
--------------------------
which is invalid, prohibited, or unenforceable in any jurisdiction, shall not
invalidate the remainder of the provision or the remaining provisions of the
Agreement.
22. Entire Agreement. Subject to the Plan, this Agreement contains
----------------
all of the representations, declarations and statements from either party to the
other and expresses the entire understanding between the parties with respect to
the transactions provided for herein. All prior memoranda, letters, statements
and agreements concerning this subject matter, if any, are merged in and
replaced by this Agreement.
23. Pronouns, Number and Gender. Wherever necessary to implement the
---------------------------
intent of the parties hereto, references herein to the singular shall be
interpreted as the plural, and vice versa, and the feminine, masculine or neuter
gender shall be treated as one of the other genders.
24. Binding Effect. This Agreement shall be binding upon and shall
--------------
inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns.
25. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which may be deemed an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed the day and year first above written.
BRITESMILE, INC.
By: ______________________________________
Its: ______________________________________
OPTIONEE
______________________________________
______________________________________
7
<PAGE>
BRITESMILE, INC.
EMPLOYEE/CONSULTANT STOCK OPTION AND STOCK APPRECIATION
RIGHTS AGREEMENT
(Revised 1997 Stock Option and Incentive Plan)
Participant: ___________________
Date of Grant: _________________
Number of Covered Shares: ______
Exercise Price Per Share: ________
This Stock Option Agreement ("Agreement") is entered into as of the
_____ day of _________________, 19___ between BriteSmile, Inc. a Utah
corporation (the "Company"), and ___________________ ("Optionee").
WHEREAS, the Company has adopted the BriteSmile, Inc. Revised 1997
Stock Option and Incentive Plan (the "Plan") and has approved the granting to
certain officers and key employees of the Company nonqualified stock options to
purchase common stock of the Company, par value $.0001 per share ("Common
Stock"); and
WHEREAS, Optionee is employed by the Company, or is engaged by the
Company as a key consultant, and the Company desires that Optionee remain in
such employ and desires to secure or increase Optionee's stock ownership of the
Company in order to increase Optionee's incentive and personal interest in the
welfare of the Company.
NOW, THEREFORE, in consideration of the premises, covenants and
agreements hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
have agreed and do hereby agree as follows:
1. Grant of Options. The Company hereby grants to Optionee options
----------------
(the "Options") to purchase all or any part of an aggregate amount of
____________________ (____________) shares of the Common Stock of the Company at
a purchase price of $______ per share, on the terms and conditions hereinafter
set forth.
2. Term of Options. Except as otherwise provided in Section 5
---------------
below, the Options shall vest and become exercisable pursuant to the following
vesting schedule, and shall remain exercisable until ten (10) years after the
date of this Agreement, at which time the Options shall terminate and not be
exercisable thereafter:
a. Options to purchase _____________ of the total number of
shares subject to Options granted shall vest and become exercisable as of the
date hereof.
<PAGE>
b. Options to purchase ____________ of the total number of
shares subject to Options granted shall vest and become exercisable, provided
Optionee is then employed by the Company, on __________________.
c. Options to purchase ____________ of the total number of
shares subject to Options granted shall vest and become exercisable, provided
Optionee is then employed by the Company, on ______________.
3. Grant of Alternate Stock Appreciation Rights. Concurrently
--------------------------------------------
with the grant of the Options pursuant to paragraph 1, the Company hereby grants
to Optionee with respect to the shares of Common Stock subject to the Options,
related Alternate Rights ("Alternate Rights"). The Alternate Rights entitle
Optionee, in lieu of exercising the Options granted herein, to elect to receive
from the Company, in the form of Common Stock, the value of the appreciation in
the Common Stock underlying the Options.
a. Entitlement Upon Exercise of Alternate Rights. Upon the
---------------------------------------------
exercise of each Alternate Right, Optionee shall be entitled to receive from the
Company the amount, if any, by which the Fair Market Value (as defined in the
Plan) of a share of Common Stock on the exercise date exceeds the Fair Market
Value of a share of Common Stock on the date the Options related to the
Alternate Rights were granted.
b. Payment in the Form of Common Stock. Payment pursuant to
-----------------------------------
paragraph 3(a) shall be made by the Company in the form of Common Stock. The
exercise of any Alternate Rights shall cancel an equal number of Options related
to said Alternate Rights. All shares issued upon the exercise of Alternate
Rights shall be issued with the rights and restrictions specified in the Plan
for shares issued pursuant to the exercise of Options.
c. Rights Subject to Terms of Related Options. Alternate
------------------------------------------
Rights shall be exercisable only to the same extent and subject to the same
conditions and within the same terms and vesting schedules, as the Options
related thereto are exercisable. Accordingly, unless the context indicates
otherwise, reference in this Agreement to "Options" shall include the Alternate
Rights associated therewith.
4. Exercise of Options. The Options or any portion thereof may be
-------------------
exercised by Optionee paying the purchase price of any shares with respect to
which the Options are being exercised by cash, certified check, bank draft or
postal or express money order. Except as otherwise provided by the Plan
Committee before the Option is exercised, (i) all or a portion of the Exercise
Price may be paid by Optionee by delivery of shares of Common Stock owned by
Optionee and acceptable to the Committee having an aggregate Fair Market Value
(as of the date of exercise) that is equal to the amount of cash that would
otherwise be required; and (ii) Optionee may pay the Exercise Price by
authorizing a third party to sell shares of Stock (or a sufficient portion of
the shares) acquired upon exercise of the Option and remit to the Company a
sufficient portion of the sale proceeds to pay the entire Exercise Price and any
tax withholding
2
<PAGE>
resulting from such exercise. In each case Optionee's payment shall be delivered
with a written notice of exercise which shall:
a. State the number of shares being exercised, the name,
address and social security number of each person for whom the stock certificate
or certificates for such shares of the Common Stock are to be registered;
b. Contain any representations and agreements as to Optionee's
investment intent with respect to the shares exercised as may be satisfactory to
the Company's counsel; and
c. Be signed by the person or persons entitled to exercise the
Options and, if the Options are being exercised by any person or persons other
than Optionee, be accompanied by proof satisfactory to counsel for the Company
of the right of such person or persons to exercise the Options.
As a condition to the exercise of the Options, the Company may require
the person exercising the Options to make any representation and warranty to the
Company that may be required by any applicable law or regulation.
5. Termination of Employment or Death.
----------------------------------
a. In the event Optionee's employment shall terminate on
account of death, the Options held by Optionee, to the extent exercisable
through the date of death, may be exercised by a person who acquires the right
to exercise the Options, provided such exercise occurs within both the remaining
effective term of the Options and one year after the Optionee's death.
b. In the event Optionee's employment shall terminate on
account of retirement or permanent disability (as defined in the Plan), the
Options held by Optionee, to the extent exercisable through the date of such
retirement or disability, may be exercised by Optionee, provided such exercise
occurs within both the remaining effective term of the Options and three years
from the date of termination of employment.
c. In the event Optionee's employment shall terminate on
account of resignation, discharge not "for cause" (as defined below), or
expiration of elected term, Optionee may exercise the Options within both the
remaining effective term of the Options and three months from the date of
termination.
d. In the event Optionee's employment shall terminate on
account of discharge for cause, no exercise period shall exist and Optionee
shall forfeit the Options as of the date of termination.
3
<PAGE>
e. To the extent not then exercisable in accordance with this
Section, the Options shall terminate on the date Optionee's employment
terminates with the Company.
f. For purposes of this Agreement, termination of employment
shall be considered to occur when an employee is no longer an employee of the
Company or any Subsidiary. Whether an authorized leave of absence or absence on
military or government service shall constitute termination of employment for
purposes of this Plan shall be determined by the Committee. Retirement shall be
considered to mean retirement pursuant to any applicable retirement plan of the
Company or any of its Subsidiaries. Termination "for cause" shall mean willful
misconduct or dishonesty or conviction of or failure to contest prosecution for
a felony, or excessive absenteeism unrelated to illness. The Options, to the
extent exercisable after death of Optionee, may be exercised by Optionee's
personal representatives.
6. Transfer of Options. Unless the Company, upon advice of its
-------------------
securities counsel, directs otherwise, the Options may not be assigned or
transferred in any manner except upon the death of Optionee by will or by the
laws of descent and distribution. During the lifetime of Optionee, the Options
shall be exercisable only by Optionee.
7. Reservation of Shares. The Company, during the term hereof, will
---------------------
at all times reserve and keep available, and will seek or obtain from any
regulatory body having jurisdiction any requisite authority in order to issue
and sell such number of shares of its Common Stock as shall be sufficient to
satisfy the requirements hereof. The inability of the Company to obtain from
any regulatory body having jurisdiction the authority deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any shares of stock
hereunder shall relieve the Company of any liability in respect of the
nonissuance or sale of such stock as to which such requisite authority shall not
have been obtained.
8. Application of Section 16(b). The parties acknowledge that, if
----------------------------
Optionee is an officer, director or ten percent (10%) shareholder of the
Company, the grant to Optionee of Options hereunder, or the Optionee's sale of
shares underlying the Options, may, unless the Plan is qualified under Rule 16b-
3 of the SEC, subject Optionee to liability under the insider trading
prohibitions of Section 16(b) of the Securities Exchange Act of 1934, if
Optionee purchases or sells Common Stock of the Company within six months before
or after the grant of the Options, or within six months before or after the sale
of the shares underlying the Options. This acknowledgment is for informational
purposes only and is not to be construed as increasing, limiting or describing
the rights and obligations of the parties hereunder.
9. Restriction on Option Exercise. Notwithstanding any contrary
------------------------------
provision hereof, the Options may not be exercised by Optionee unless the shares
to be acquired by Optionee have been registered under the Securities Act of 1933
(the "Act"), and any other applicable securities laws of any other state, or the
Company receives an opinion of counsel (which may be counsel for the Company)
reasonably acceptable to the Company stating that the exercise of the Options
and the issuance of shares pursuant to the exercise is registered or exempt
4
<PAGE>
from such registration requirements. Optionee shall represent that unless and
until the shares have been registered under the Act and applicable state
securities laws: (1) Optionee is acquiring the shares for investment purposes
only and without the intent of making any sale or disposition thereof; (2)
Optionee has been advised and understands that the shares have not been
registered for sale pursuant to federal and state securities laws and are
"restricted securities" under such laws; and (3) Optionee acknowledges that the
shares will be subject to stop transfer instructions and bear the following
legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER ANY OTHER STATE SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF REGISTRATION
OR THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION.
NO OFFER, SALE OR TRANSFER MAY TAKE PLACE WITHOUT PRIOR
WRITTEN APPROVAL OF THE COMPANY BEING AFFIXED HERETO. IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT, SUCH
APPROVAL SHALL BE GRANTED ONLY IF THE COMPANY HAS RECEIVED
AN OPINION OF SHAREHOLDER'S COUNSEL AT SHAREHOLDER'S EXPENSE
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT THIS
CERTIFICATE MAY BE LAWFULLY TRANSFERRED PURSUANT TO AN
EXEMPTION FROM REGISTRATION.
10. Withholding of Taxes. The Options may not be exercised unless
--------------------
Optionee has paid or has made provision satisfactory to the Company for payment
of, federal, state and local income taxes, or any other taxes (other than stock
transfer taxes) which the Company may be obligated to collect as a result of the
issue or transfer of Common Stock upon such exercise of the Options. In its
sole discretion, and at the request of Optionee, the Company may permit Optionee
(other than an Optionee who would be subject to Section 16(b) of the Exchange
Act) to satisfy the obligation imposed by this Section, in whole or in part, by
instructing the Company to withhold up to that number of shares otherwise
issuable to Optionee with a fair market value equal to the amount of tax to be
withheld.
11. Mergers, Reorganizations, and Certain Other Changes. In the
---------------------------------------------------
event of the Company's liquidation, reorganization, separation, merger or
consolidation into, or acquisition of property or stock by another corporation,
or sale of substantially all assets to another corporation, the rights of
Optionee with respect to the Options granted hereunder shall be governed by the
Plan Committee, as provided in Section 9.12 (i) of the Plan.
5
<PAGE>
12. Antidilution. The aggregate number of shares of Common Stock
------------
available for issuance under the Options, and the price per share, shall all be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock subsequent to the date of this Agreement resulting from a
recapitalization, reorganization, merger, consolidation or similar transaction
as provided in the Plan.
13. No Rights as a Stockholder. Optionee or a permitted transferee
--------------------------
of the Options shall have no rights as a stockholder with respect to any shares
covered by the Options until the date as of which stock is issued following
exercise of such Options. Except as provided in this Agreement, no adjustment
shall be made for dividends (ordinary or extraordinary, whether in cash,
securities or other property) or any other distributions for which the record
date is prior to the date as of which such stock is issued.
14. No Employment Rights. This Agreement is not an employment
--------------------
agreement or contract and does not grant any employment rights to Optionee.
15. Other Provisions. The Company may, as a condition precedent to
----------------
the exercise of the Options, require Optionee (including, in the event of
Optionee's death, his legal representatives, legatees or distributees) to enter
into such agreements or to make such representations as may be required to make
lawful the exercise of the Options and the ultimate disposition of the shares
acquired by such exercise.
16. Notices. Any notice which either of the parties hereto is
-------
required or permitted to give to the other must be in writing and may be given
by personal delivery or by mailing the same by registered or certified mail,
return receipt requested, to the party to which or to whom the notice is
directed, at the address each party designates in writing. Any notice mailed to
such address shall be effective when deposited in the mail, duly addressed and
postage prepaid, notwithstanding failure by the addressee thereof to receive the
mailed notice.
17. Governing Law. All transactions contemplated hereunder and all
-------------
rights of the parties hereto shall be governed as to validity, construction,
enforcement and in all other respects by the laws and decisions of the State of
Utah.
18. Titles. The titles of the sections of this Agreement are
------
inserted only as a matter of convenience and for reference, and in no way
define, limit or describe the scope of this Agreement or the intent of any
provisions hereof.
19. Amendment. This Agreement shall not be modified or amended
---------
except by written agreement signed by all of the parties hereto.
20. Attorney's Fees and Costs of Enforcement. If any party to this
----------------------------------------
Agreement shall incur any costs resulting from enforcement of this Agreement,
the defaulting party shall be liable to the prevailing party for such costs.
Costs, as used herein, shall include costs of
6
<PAGE>
enforcement, interpretation, or collection, including without limitation,
reasonable attorney's fees, court costs, collection charges, travel and other
related or similar expenses.
21. Severability of Provisions. Any provision of this Agreement
--------------------------
which is invalid, prohibited, or unenforceable in any jurisdiction, shall not
invalidate the remainder of the provision or the remaining provisions of the
Agreement.
22. Entire Agreement. Subject to the Plan, a copy of which in its
----------------
present form is available from the Secretary of the Company, this Agreement
contains all of the representations, declarations and statements from either
party to the other and expresses the entire understanding between the parties
with respect to the transactions provided for herein. All prior memoranda,
letters, statements and agreements concerning this subject matter, if any, are
merged in and replaced by this Agreement.
23. Pronouns, Number and Gender. Wherever necessary to implement the
---------------------------
intent of the parties hereto, references herein to the singular shall be
interpreted as the plural, and vice versa, and the feminine, masculine or neuter
gender shall be treated as one of the other genders.
24. Binding Effect. This Agreement shall be binding upon and shall
--------------
inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns.
25. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which may be deemed an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed the day and year first above written.
BRITESMILE, INC.
By:______________________
Its:_____________________
OPTIONEE
_________________________
_______________
7
<PAGE>
EXHIBIT 5
DURHAM, JONES & PINEGAR, P.C.
50 South Main Street, Suite 850
Salt Lake City, Utah 84144
July 2, 1999
BriteSmile, Inc.
200 Diplomat Drive, #204
Lester, PA 19113
Re: Registration Statement on Form S-8 of BriteSmile, Inc. (the
"Registration Statement")
Dear Sirs:
We have acted as counsel for BriteSmile, Inc., a Utah corporation (the
"Company"), in connection with the registration under the Securities Act of
1933, as amended (the "Act"), of an aggregate of up to 4,000,000 shares of the
Company's Common Stock, par value $.001 per share, which may be issued to
directors, officers and key consultants of the Company pursuant to the terms of
the Revised 1997 Stock Option Plan (the "Plan"), and up to 675,000 additional
shares of Common Stock which may be issued pursuant to written consulting
agreements (the "Consulting Agreements") with Company consultants. The aggregate
of 4,675,000 shares to be registered under the Act are referred to herein as the
"Shares."
In connection with the foregoing, we have examined originals or copies,
certified or otherwise authenticated to our satisfaction, of such corporate
records of the Company and other instruments and documents as we have deemed
necessary as a basis for the opinion hereinafter expressed.
Based upon the foregoing and in reliance thereon, it is our opinion that the
Shares described in the above-referenced Registration Statement, when issued
pursuant to the terms of the Registration Statement, and the Plan or Consulting
Agreements, as applicable, will be validly issued, fully paid and non-
assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm in the Registration Statement and the
prospectus to be delivered thereunder. In giving this consent, we do not
thereby admit that we come within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Sincerely,
DURHAM JONES & PINEGAR P.C.
/s/ DURHAM JONES & PINEGAR, P.C.
<PAGE>
Exhibit 23(a)
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Revised 1997 Stock Option and Incentive Plan of
BriteSmile, Inc. of our report dated May 14, 1999, with respect to the
consolidated financial statements of BriteSmile, Inc. included in its Annual
Report (Form 10-KSB) for the fiscal year ended March 31, 1999, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Philadelphia, Pennsylvania
July 1, 1999
