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SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-11(c) or 240.14a-12
BriteSmile, Inc.
................................................................................
(Name of Registrant as Specified in Charter)
................................................................................
(Name of Person(s) Filing Proxy Statement If Other Than The Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required
[ ] $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1),
14a-6(i)(2) or Item 22(a)(2) of Schedule 14A.
[ ] Fee computed on table below per Exchange Act Rules
14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
...............................................................
2) Aggregate number of securities to which transaction applies:
...............................................................
3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (Set forth the
amount on which the filing fee is calculated and state how it
was determined): .............................................
4) Proposed maximum aggregate value of transaction:
...............................................................
5) Total fee paid:
...............................................................
[ ] Fee paid previously with preliminary materials
[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for
which the offsetting fee was paid previously. Identify the
previous filing by registration statement number, or the For
of Schedule and the date of its filing.
1) Amount Previously Paid:.......................................
2) Form, Schedule or Registration Statement
No............................................................
3) Filing Party:.................................................
4) Date Filed:...................................................
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<PAGE>
BRITESMILE, INC.
490 North Wiget Lane
Walnut Creek, California 94598
(925) 941-6260
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD JANUARY 31, 2000
To the Shareholders:
Notice is hereby given that a Special Meeting of the
Shareholders of BriteSmile, Inc. (the "Company") will be held at 490 North Wiget
Lane, Walnut Creek, California 94598 on Monday, January 31, 2000, at 9:00 a.m.,
local time, and at any postponement or adjournment thereof, for the following
purposes, which are discussed in the following pages and which are made part of
this Notice:
1. To approve a proposal to amend and restate the
Articles of Incorporation of the Company in the form
attached as Exhibit A; and
2. To consider and act upon any other matters that
properly may come before the meeting or any
adjournment thereof.
The Company's Board of Directors has fixed the close of
business on January 4, 2000 as the record date for the determination of
shareholders having the right to notice of, and to vote at, the Special Meeting
of Shareholders and any adjournment thereof. A list of such shareholders will be
available for examination by a shareholder for any purpose related to the
meeting during ordinary business hours at the offices of the Company at 490
North Wiget Lane, Walnut Creek, California 94598 during the ten days prior to
the meeting.
You are requested to date, sign and return the enclosed Proxy
which is solicited by the Board of Directors of the Company and will be voted as
indicated in the accompanying Proxy Statement and Proxy. Your vote is important.
Please sign and date the enclosed Proxy and return it promptly in the enclosed
return envelope, whether or not you expect to attend the meeting. The giving of
your proxy as requested will not affect your right to vote in person if you
decide to attend the meeting. The return envelope requires no postage if mailed
in the United States. If mailed elsewhere, foreign postage must be affixed. Your
proxy is revocable at any time before the meeting.
By Order of the Board of Directors,
Paul A. Boyer, Secretary
Walnut Creek, California
January 10, 2000
<PAGE>
BRITESMILE, INC.
490 North Wiget Lane
Walnut Creek, California 94598
(925) 941-6260
PROXY STATEMENT
SPECIAL MEETING OF SHAREHOLDERS
The enclosed Proxy is solicited by the Board of Directors of
BriteSmile, Inc. (the "Company") for use in voting at the Special Meeting of
Shareholders to be held at 490 North Wiget Lane, Walnut Creek, California 94598
on January 31, 2000, at 9:00 a.m., local time, and at any postponement or
adjournment thereof, for the purposes set forth in the attached notice. When
proxies are properly dated, executed and returned, the shares they represent
will be voted at the Special Meeting in accordance with the instructions of the
shareholder completing the proxy. A shareholder giving a proxy has the power to
revoke it at any time prior to its exercise by voting in person at the Special
Meeting, by giving written notice to the Company's Secretary prior to the
Special Meeting, or by giving a later dated proxy.
The presence at the meeting, in person or by proxy, of
shareholders holding in the aggregate a majority of the outstanding shares of
the Company's Common Sock entitled to vote shall constitute a quorum for the
transaction of business. Action on a matter is approved if the votes properly
cast favoring the action exceed the votes cast opposing the action. Abstentions
and broker non-votes will count for purposes of establishing a quorum, but will
not count as votes cast for any other questions and accordingly will have no
effect. Votes cast by shareholders who attend and vote in person or by proxy at
the Special Meeting will be counted by inspectors to be appointed by the Company
(it is anticipated that the inspectors will be employees, attorneys or agents of
the Company).
LCO Investments Ltd., the Company's principal shareholder,
currently owns or controls approximately 63% of the Company's outstanding shares
of Common Stock. LCO has agreed with a prospective new investor that it will
vote all of its shares in favor of the proposal to amend and restate the
Company's articles as explained in this Proxy Statement. Accordingly, adoption
of the new Amended and Restated Articles is assured.
The close of business on January 4, 2000 has been fixed as the
record date for determining the shareholders entitled to notice of, and to vote
at, the Special Meeting. Each share will be entitled to one vote on all matters.
As of the record date there were 20,140,925 shares of the Company's Common Stock
outstanding and entitled to vote. For a description of the principal holders of
the Company's Common Stock, see "SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT" below.
This Proxy Statement and the enclosed Proxy are being
furnished to shareholders on or about January 10, 2000.
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<PAGE>
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information as of January 4,
2000 regarding beneficial stock ownership of (i) all persons known to the
Company to be beneficial owners of more than 5% of the outstanding Common Stock,
(ii) each director of the Company, (iii) each person who served at any time
during the Company's last completed fiscal year as the Company's CEO, (iv) the
Company's four most highly compensated executive officers other than the CEO who
were serving as officers at March 31, 1999 (the end of the Company's last
completed fiscal year), and (v) all officers and directors of the Company as a
group. Each of the persons in the table below has sole voting power and sole
dispositive power as to all of the shares shown as beneficially owned by them
except as otherwise indicated.
<TABLE>
<CAPTION>
Name and Address Number of Shares Beneficially Owned Percent of Outstanding Shares(17)
Executive Officers and Directors
<S> <C> <C>
Anthony M. Pilaro
36 Fitzwilliam Place
Dublin 2, IRELAND 12,614,438 (1) 62.6%
John L. Reed
490 North Wiget Lane
Walnut Creek, CA 94598 1,005,409 (2) 4.91%
Linda S. Oubre
490 North Wiget Lane
Walnut Creek, CA 94598 107,696 (3) *
Andrew J. Hofmeister
490 North Wiget Lane
Walnut Creek, CA 94598 97,397 (4) *
David W. Bruhin
490 North Wiget Lane
Walnut Creek, CA 94598 92,831 (5) *
Paul Dawson
36 Fitzwilliam Place
Dublin 2, Ireland 327,397 (6) 1.62%
Richard V. Trefz
490 North Wiget Lane
Walnut Creek, CA 94598 152,831 (7) *
Michael F. Bonner
Airport Business Center
200 Diplomat Drive, Bay 204
Lester, PA 19113 100,000 (8) *
R. Eric Montgomery
29 Fairview Road
P. O. Box 487
Monterey, MA 01245 309,707 (9) 1.52%
Jennifer Scott
121 Madison Ave.
Apt. 6-I
New York, N.Y. 10016 40,423 (10) *
- 2 -
<PAGE>
Bruce V. Wainright
1121 Silver Oaks Ct.
Raleigh, N.C. 27614 69,177 (11) *
Peter Schechter
1850 M Street, Suite 560
Washington, D.C. 20036 20,000 (12) *
Bradford G. Peters
1633 Broadway, 33rd Floor
New York, New York 10019 456,621 (13) 2.27%
Harry Thompson
169 East 78th Street
New York, New York 10021 100,000 (14) *
All Officers and Directors
as a Group (14 persons) 15,493,927 (15) 72.4%
LCO Investments Limited
Canada Court
Upland Road
St. Peter Port
Guernsey
Channel Islands 12,614,438 (16) 62.6%
- -----------------
</TABLE>
* Constitutes less than 1%.
1 Represents 12,429,438 shares owned directly or beneficially
by LCO Investments Limited, and 185,000 shares held by entities
over which CAP Advisers Limited shares voting power. Mr. Pilaro is
Chairman of CAP Advisers Limited. CAP Advisers is the sole trustee
of the ERSE Trust, of which LCO Investments Limited is a
wholly-owned subsidiary. Mr. Pilaro disclaims beneficial ownership
of Company shares owned by LCO.
2 Includes 655,409 shares owned beneficially, and 350,000
shares which Mr. Reed has the right to acquire upon the exercise
of vested options at $2.50 per share.
3 Includes 27,696 shares owned beneficially, and options to purchase
80,000 shares presently exercisable at $1.75 per share.
4 Includes 37,397 shares owned beneficially, options to purchase
40,000 shares presently exercisable at $1.75 per share, options to
purchase 10,000 shares presently exercisable at $2.75 per share,
and options to purchase 10,000 shares presently exercisable at
$13.375 per share.
5 Includes 22,831 shares owned beneficially, options to purchase
50,000 shares presently exercisable at $1.75 per share, options to
purchase 10,000 shares presently exercisable at $1.00 per share,
and options to purchase 10,000 shares presently exercisable at
$2.75 per share.
6 Includes 227,397 shares owned beneficially, and 100,000
shares which Mr. Dawson has the right to acquire upon the exercise
of vested options at $6.00 per share.
7 Includes 47,831 shares owned beneficially, and options to
purchase 105,000 shares presently exercisable at $1.75 per share.
8 Includes 50,000 shares owned beneficially, and options to purchase
50,000 shares presently exercisable at $1.00 per share.
- 3 -
<PAGE>
9 Includes 34,707 shares owned beneficially of record by Mr.
Montgomery, options to purchase 175,000 shares presently
exercisable at $1.75 per share, and options to purchase 100,000
shares held by Oraceutical LLC presently exercisable at $1.75 per
share. Mr. Montgomery is a Manager of Oraceutical LLC.
10 Includes 20,423 shares owned beneficially, and options to
purchase 20,000 shares presently exercisable at $1.0625 per share.
11 Includes 38,677 shares owned beneficially, options to
purchase 20,000 shares presently exercisable at $2.50 per share,
and options to purchase 10,500 shares presently exercisable at
$6.375 per share.
12 Represents options to purchase 20,000 shares presently exercisable
at $11.25 per share.
13 Includes 456,621 shares owned by Andrew J. McKelvey
over which Mr. Peters has or shares investment control.
14 Includes options to purchase 100,000 shares presently exercisable
at $1.50 per share.
15 Includes presently exercisable options to purchase 1,260,500
shares.
16 Represents 12,429,438 shares owned directly or beneficially by LCO
Investments Limited, and 185,000 shares held by entities over
which CAP Advisers Limited shares voting power. LCO Investments
Limited is a wholly-owned subsidiary of the ERSE Trust. The sole
trustee of the ERSE Trust is CAP Advisers Limited. Mr. Pilaro, a
director of the Company, is Chairman of CAP Advisers Limited. Mr.
Pilaro disclaims beneficial ownership of Company shares owned by
LCO.
17 All percentages are calculated based upon a total number of
shares outstanding of 20,140,925 as of January 4, 2000, plus that
number of options exercisable within the next 60 days by the named
security holder.
PROPOSAL 1 - ADOPT AMENDED AND RESTATED ARTICLES OF INCORPORATION
At the Special Meeting, the shareholders will consider and vote upon a
proposal to amend and restate in one document the Articles of Incorporation of
the Company, in the form of the Amended and Restated Articles of Incorporation
(the "New Articles") attached as Exhibit A and by this reference made a part
hereof.
Background
The Company was initially incorporated in Utah in 1984. In 1992, the
Utah legislature repealed the state's Business Corporation Act and adopted the
Revised Utah Business Corporation Act (the "Revised Act"). Adoption of the
Revised Act reflected an effort by the state legislature to modernize and update
Utah's laws regarding business corporations. Since the adoption of the Revised
Act, the Company has amended its Articles of Incorporation only once in 1998 for
the sole purpose of changing the name of the Company to BriteSmile, Inc. The
Board of Directors believes the Company should adopt the following
- 4 -
<PAGE>
amendments to its Articles of Incorporation to take advantage of certain
corporate law changes adopted in Utah's Revised Act, to simplify and clarify the
Company's corporate charter, to facilitate future financings of the Company in
general, and in particular, to satisfy a condition precedent to closing a
recently executed stock purchase agreement between the Company and prospective
private investors.
Business Purpose and Powers
Article III of the current Articles of Incorporation of the Company
(the "Old Articles") provides that the business purpose of the Company is "the
research, development, manufacture and sale of lasers and all business
associated therewith," and that the Company "shall have all of the powers
granted or allowed by the Utah Business Corporation Act, as may be amended from
time to time, and all of the powers necessary or convenient to effect any or all
of the purposes for which this corporation is organized."
In keeping with the change of the Company's core business to teeth
whitening, the development and use of light-activated teeth whitening devices,
and to facilitate the Company's securing of future financing of this new area of
business, the Board of Directors has proposed that the Company amend Article III
of the Old Articles to provide that the business purpose of the Company will
include "any and all lawful acts, activities, and pursuits for which
corporations may presently or hereafter be organized under the Revised Act." In
particular, the closing of the sale of shares of the Company's Common Stock
pursuant to a recently executed stock purchase agreement with private investors
is conditioned on satisfaction of various conditions precedent, including the
Company's calling of a Special Meeting of Shareholders for the purpose of
updating and expanding the business purpose clause of the Old Articles as
explained above.
The broader "purpose" language of the proposed New Articles is used
routinely in the articles of incorporation of other companies. Although the
Company's Board is not aware of specific new lines of business opportunities for
the Company, the Board believes that the proposed expansion and updating of the
Company's business purpose clause will give the Company the flexibility to take
advantage of future business opportunities that may arise which complement its
current teeth whitening business.
The New Articles will also amend the "powers" clause of the Company's
Articles of Incorporation. Proposed Article II of the New Articles does not
reflect a substantive change from the Old Articles, but simplifies the Articles
to provide that the Company has "all powers allowed by law," including but not
limited to certain generic powers enumerated in the Revise Act. The Old Articles
attempts to list the powers of the Company. The Company desires to avoid the
enumeration of specific powers so that the listing of specific powers is not
misinterpreted to limit the meaning of the grant of general powers.
Duration
The New Articles delete Article II of the Old Articles, which provided
that the duration of Company is perpetual. Old Article II is unnecessary because
Utah law presumes that the duration of all corporations is perpetual.
Limitation of Liability of Directors
Article IV of the New Articles is not a substantive change from the Old
Articles. However, new Article IV conforms the language of the Company's charter
with current language of the Revised Act regarding limitations on the personal
liability of the Company's directors to its shareholders for breach of duties to
the Company. New Article IV provides that no director of the Company will be
personally liable to the Company or its shareholders for monetary damages for
any action taken or any failure to take any action as a director, except as
specifically provided. The limitation of liability thus provided does not extend
to: (a) the amount of a financial benefit received by a director to which he is
not entitled, (b) an intentional
- 5 -
<PAGE>
infliction of harm on the Company or its shareholders, (c) violation of the
provisions of the Revised Act regarding unlawful corporate distributions to
shareholders, and (d) intentional violations of criminal law.
Pre-emptive Rights
The New Articles delete current Article VI, which provides that the
shareholders shall not have pre-emptive rights to acquire shares of Common Stock
of the Company. Article VI of the Old Articles is unnecessary because the
Revised Act now provides that shareholders do not have pre-emptive rights unless
the Company's articles provide otherwise.
Power of Directors to Mortgage or Pledge Property
The New Articles delete current Article VII, which provides that
directors have the right to mortgage or pledge property or assets of the
Company. This Article is unnecessary because the Revised Act Utah law provides
this power to directors, unless specifically restricted in the articles.
Common Directors
The New Articles delete current Article VIII, which provided a safe
harbor for directors that may have a conflict of interest with respect to
actions taken by the Company. Article VIII of the Old Articles is unnecessary
because director conflict of interest transactions are governed by the specific
provisions of Sections 16-10a-850 through 853 of the Revised Act, which cannot
be restricted or limited by conflicting provisions in the Company's Articles.
Action by Shareholder Consent
Section V of the New Articles provides that, consistent with the
statutory provisions of Section 16- 10a-704 of the Revised Act, any action which
may be taken at any annual or special meeting of shareholders may be taken
without a meeting, and without prior written notice, if written consent to the
action is obtained from holders of the Company's outstanding shares of Common
Stock having not less than the minimum votes necessary to authorize the action.
This proposed amendment is designed to enable the Company to take
shareholder action without incurring the expense and delays commonly associated
with holding special meetings of shareholders for the approval of Company
actions requiring shareholder approval. At present, the practical effect and
potential savings in time and expense of the proposed new Section V is limited.
Current rules of the American Stock Exchange require that a company listed on
the Exchange hold a meeting of its stockholders and solicit proxies (pursuant to
a proxy statement conforming to the proxy rules of the Securities and Exchange
Commission), unless the Exchange expressly permits the solicitation of written
consents from all stockholders of record in lieu of holding a special meeting.
AMEX rules also provide that written consents of shareholders may not be used at
any time in connection with the election of directors or for other major
corporate action.
The Company intends to maintain its listing on AMEX, or on some other
national exchange or recognized national securities market. Accordingly, the
practical benefit to the Company of soliciting shareholder consents rather than
calling special meetings of shareholders would be the saving of costs associated
with holding a meeting, such as the reservation and rental of the meeting
facility, travel costs for shareholders, and the formalities of conducting a
meeting such as presentations by officers and vote tabulation at the meeting by
inspectors of election.
THE BOARD OF DIRECTORS RECOMMENDS THAT THE SHAREHOLDERS
VOTE "FOR" THE PROPOSAL TO AMEND THE ARTICLES OF
INCORPORATION OF THE COMPANY.
- 6 -
<PAGE>
OTHER MATTERS
As of the date of this Proxy Statement, the Board of Directors of the
Company does not intend to present, and has not been informed that any other
person intends to present, a matter for action at the Special Meeting other than
as set forth herein and in the Notice of Special Meeting. If any other matter
properly comes before the meeting, it is intended that the holders of proxies
will act in accordance with their best judgment.
The accompanying proxy is being solicited on behalf of the Board of
Directors of the Company. In addition to the solicitation of proxies by mail,
certain of the officers and employees of the Company, without extra
compensation, may solicit proxies personally or by telephone. The Company will
also request brokerage houses, nominees, custodians and fiduciaries to forward
soliciting materials to the beneficial owners of Common Stock held of record and
will reimburse such persons for forwarding such material. The cost of this proxy
solicitation will be borne by the Company.
By Order of the Board of Directors
Paul A. Boyer, Secretary
Walnut Creek, California
January 10, 2000
- 7 -
<PAGE>
APPENDICES
1. FORM OF PROXY
2. FORM OF AMENDED AND RESTATED ARTICLES OF INCORPORATION
- 8 -
<PAGE>
PROXY
BRITESMILE, INC.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints John L. Reed and Paul A. Boyer and
each of them as Proxies, with full power of substitution, and hereby authorizes
them to represent and vote, as designated below, all shares of Common Stock of
the Company held of record by the undersigned on January 4, 2000 at the Special
Meeting of Shareholders to be held at the 490 North Wiget Lane, Walnut Creek,
California 94598, on Monday, January 31, 2000, at 9:00 a.m., local time, or at
any adjournment thereof.
1. To adopt and approve the amendments to the Company's Articles of
Incorporation in the form of the Amended and Restated Articles of
Incorporation attached as Exhibit A to the Company's Proxy Statement
dated January 10, 2000.
FOR AGAINST ABSTAIN
/ / / / / /
2. In their discretion, the Proxies are authorized to vote upon such
other business as may properly come before the Special Meeting.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED
HEREIN BY THE UNDERSIGNED SHAREHOLDER. IF NO DIRECTION IS MADE, THIS PROXY
WILL BE VOTED FOR PROPOSAL 1.
DATE:
------------------------------------------
------------------------------------------
Signature
------------------------------------------
Signature of joint holder, if any
PLEASE SIGN EXACTLY AS THE SHARES ARE ISSUED. WHEN SHARES ARE HELD BY JOINT
TENANTS, BOTH SHOULD SIGN. WHEN SIGNING AS ATTORNEY, AS EXECUTOR,
ADMINISTRATOR, TRUSTEE OR GUARDIAN, PLEASE GIVE FULL TITLE AS SUCH. IF A
CORPORATION, PLEASE SIGN IN FULL CORPORATE NAME BY PRESIDENT OR OTHER
AUTHORIZED OFFICER. IF A PARTNERSHIP, PLEASE SIGN IN PARTNERSHIP NAME BY
AUTHORIZED PERSON.
PLEASE DATE, SIGN AND RETURN THIS PROXY CARD PROMPTLY USING THE ENCLOSED
ENVELOPE
- 9 -
<PAGE>
ARTICLES ADOPTING
AMENDED AND RESTATED ARTICLES OF INCORPORATION
BRITESMILE, INC.
Pursuant to Section 16-10a-1007 of the Utah Revised Business
Corporation Act, as amended (the "Act"), BriteSmile, Inc., a Utah corporation
(the "Corporation"), adopts the following Articles of Amendment and Restatement
of its Articles of Incorporation, which amendment constitutes an amendment and
restatement of the Articles of Incorporation of the Corporation.
FIRST: The name of the Corporation is BriteSmile, Inc.
SECOND: The Corporation's Articles of Incorporation are
hereby amended and restated to read in their entirety as follows:
ARTICLE I - NAME
The name of this corporation is BriteSmile, Inc.
ARTICLE II - PURPOSES AND POWERS
The Corporation is organized to engage in any and all lawful acts,
activities, and/or pursuits for which corporations may presently or hereafter be
organized under the Utah Revised Business Corporation Act.
The Corporation shall have all powers allowed by law, including without
limitation those powers described in Section 16-10a-302 of the Utah Revised
Business Corporation Act, as amended and supplemented. The purposes stated
herein shall be construed as powers as well as purposes and the enumeration of a
specific purpose or power shall not be construed to limit or restrict the
meaning of general terms or the general powers; nor shall the expression of one
thing be deemed to exclude another not expressed, although it be of like nature.
ARTICLE III - CAPITAL STOCK
The aggregate number of shares of Common Stock which this corporation
shall have authority to issue is Fifty Million (50,000,000) shares, $0.001 par
value per share. All voting rights of the Corporation shall be exercised by the
holders of the Common Stock and the holders of the Common Stock of the
Corporation shall be entitled to receive the net assets of the
1
<PAGE>
Corporation upon dissolution. All shares of the Common Stock shall be fully paid
and nonassessable.
ARTICLE IV - LIMITATION OF LIABILITY
Within the meaning of and in accordance with Section 16-10a-841 of the
Utah Revised Business Corporation Act:
(1) No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for any action taken or any
failure to take any action as a director, except as provided in this Article IV.
(2) The limitation of liability contemplated in this Article IV shall
not extend to (a) the amount of a financial benefit received by a director to
which he is not entitled, (b) an intentional infliction of harm on the
Corporation or its shareholders, (c) a violation of Section 16- 10a-842 of the
Utah Revised Business Corporation Act, or (d) an intentional violation of
criminal law.
(3) Any repeal or modification of this Article IV by the shareholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
(4) Without limitation, this Article IV shall be applied and
interpreted, and shall be deemed to incorporate, any provision of the Utah
Revised Business Corporation Act, as the same exists or may hereafter be
amended, any provision of any act that may replace or supplement the Utah
Revised Business Corporation Act, as well as any applicable interpretation of
Utah law, so that personal liability of directors and officers of the
Corporation to the Corporation or its shareholders, or to any third person,
shall be eliminated or limited to the fullest extent as from time to time
permitted by Utah law.
ARTICLE V - ACTION BY SHAREHOLDER CONSENT
Within the meaning of and in accordance with Sections 16-10a-704 and
1704(4) of the Utah Revised Business Corporation Act, and subject to the
qualifications and limitations thereof, and of any applicable rules of any
exchange or market on which the Company's shares may be traded:
Any action which may be taken at any annual or special meeting of
shareholders may be taken without a meeting and without prior notice, if one or
more consents in writing, setting forth the action so taken, shall be signed by
the holders of outstanding shares having not less than the minimum number of
votes that would be necessary to authorize or take the action at a meeting at
which all shares entitled to vote thereon were present and voted.
2
<PAGE>
THIRD: These Amended and Restated Articles of Incorporation were
recommended to the shareholders by the Board of Directors pursuant to a
resolution of the Board of Directors dated December 22, 1999, and adopted by the
holders of a majority of the Company's issued and outstanding shares of Common
Stock at a Special Meeting of Shareholders of the Company held
on________________, 2000.
FOURTH: The number of shares of Common Stock of the
Corporation outstanding and entitled to vote thereon at the time of such
adoption was ________________, with ______ shares being represented at the
meeting. The number of votes cast in favor of adoption of the Articles was
________________. The number of votes cast against adoption of the Articles was
_________.
DATED effective this _____ day of January, 2000.
BRITESMILE, INC.
By:
Paul A. Boyer, CFO and Secretary
3
