THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF ANY STATE, AND WILL BE OFFERED AND SOLD BY THE COMPANY IN
RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF FEDERAL AND STATE
LAW BY VIRTUE OF THE COMPANY'S INTENDED COMPLIANCE WITH THE PROVISIONS OF
SECTION 4(2) AND/OR REGULATION S PROMULGATED UNDER THE ACT. THE SECURITIES HAVE
NOT BEEN APPROVED OR DISAPPROVED BY ANY REGULATORY AUTHORITY. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
NOTE PURCHASE AGREEMENT
This Note Purchase Agreement ("Agreement") is made and entered into as
of the 5th day of December, 2000 by and between BriteSmile, Inc., a Utah
corporation ("BriteSmile" or the "Company") and LCO Investments Limited
("Purchaser").
A. The Company desires to borrow Five Million Dollars($5,000,000)
from Purchaser and Purchaser desires to lend $5,000,000 to the
Company; and
B. In consideration of the loan amount, the Company has authorized
the issuance to Purchaser of a Convertible Promissory Note in
the original principal amount of $5,000,000 (the "Note").
NOW THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, and other valuable consideration, the receipt of
which is hereby acknowledged, the parties covenant and agree as follows:
1. Loan and Note Purchase. The Company agrees to borrow Five Million
Dollars ($5,000,000) from Purchaser and Purchaser agrees to lend to the Company
$5,000,000 (the "Loan") pursuant to the terms and conditions of this Agreement
and the Note, a copy of which is attached to this Agreement as Exhibit "A" and
by this reference incorporated herein. Purchaser agrees to purchase the Note and
tenders herewith the principal amount of the Loan, receipt of which by the
Company is hereby acknowledged. Principal and interest owing under the Note is
convertible into shares of Common Stock, par value $.001 per share, of the
Company ("Common Stock") under certain conditions as set forth in the Note. The
total purchase price (the "Purchase Price") of the Note shall be Five Million
Dollars ($5,000,000). The Purchaser shall pay the Purchase Price in full at
Closing, as hereinafter defined, via wire transfer to an account of the Company
identified by the Purchaser and under the control of persons designated by or
acceptable to the Purchaser on or before the Closing Date. Wire instructions
shall be provided prior to the Closing.
2. Warrants to Purchase Common Stock. At Closing the Company shall
grant to Purchaser three-year warrants to purchase up to Two Hundred Fifty
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Thousand (250,000) shares of Common Stock of the Company at an exercise price of
Five Dollars ($5.00) per share (the "Warrants"). Purchaser's rights to acquire
the shares of Common Stock underlying the Warrants shall be as set forth in the
form of Warrant Agreement attached to this Agreement as Exhibit "B" (the
"Warrant Agreement") and by this reference made a part hereof. The shares of
Common Stock into which the Note may be converted, together with the shares of
Common Stock underlying the Warrants, shall be referred to collectively in this
Agreement as the "Shares." The Note and the Shares are referred to collectively
in this Agreement as the "Securities."
3. Registration Rights. The Shares shall be subject to certain
registration rights, as provided in that certain Registration Rights Agreement
dated as of May 5, 1998 (the "Registration Rights Agreement"), between Purchaser
and the Company and by this reference made a part hereof. The Registration
Rights Agreement shall be amended prior to the Closing, pursuant to the form of
Amendment attached to this Agreement as Exhibit "C", to include the Shares as
registrable securities under Sections 1 and 2 thereof. (Such Registration Rights
Agreement, as amended, together with this Agreement, the Note, and the Warrants,
constitute the "Transaction Documents"). In addition, BriteSmile shall make
appropriate filings under the rules of Nasdaq in order that the Shares will be
authorized for listing on Nasdaq, subject to notice of issuance.
4. Closing. Payment of the Purchase Price by the Purchaser and delivery
of the Note, Warrant Agreement and Registration Rights Agreement by BriteSmile
shall be deemed to be the completion of the transactions contemplated by this
Agreement ("Closing"). Closing shall occur concurrently with the execution of
this Agreement, or on such later date as the parties may hereafter agree (the
"Closing Date").
5. Use and Disposition of Proceeds. The Loan proceeds will be
used in the manner directed by the Company's Board of Directors, or as shall be
determined or directed pursuant to authority delegated by the Board.
6. Representations and Warranties of Purchaser. To induce the
Company's acceptance of this Agreement, Purchaser hereby represents and warrants
to the Company and its agents and attorneys as follows:
6.1 Investor Status. Purchaser is an "accredited
investor" within the meaning of Section 501(a)of Regulation D under the
Act, or is not a "U.S. Person" as that term is defined under Rule
902(o)(1) of Regulation S under the Act.
6.2 Liquidity. Purchaser presently has sufficient liquid
assets to pay the Purchase Price. Purchaser has adequate means of
providing for its current needs and contingencies and has no need for
liquidity in its investment in the Company or for a source of income
from the Company. Purchaser is capable of bearing the economic risk and
the burden of the investment contemplated by this Agreement, including,
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but not limited to, the possibility of the complete loss of the value
of the Securities, and the limited transferability of the Securities,
which may make the liquidation of the Securities impossible in the near
future.
6.3. Organization, Standing, Authorization. Purchaser is duly
organized, validly existing, and in good standing under the laws of
Guernsey, Channel Islands, and has the requisite power and authority to
enter into this Agreement, acquire the Note, and execute and deliver
any documents or instruments in connection with this Agreement. The
execution and delivery of this Agreement, and all other documents and
instruments executed by Purchaser in connection with any of the
transactions contemplated by this Agreement, have been duly authorized
by all required action of Purchaser's members or managers. The person
executing, on Purchaser's behalf, this Agreement and any other
documents or instruments executed by Purchaser in connection with this
Agreement is duly authorized to do so.
6.4. Absence of Conflicts. Purchaser represents and warrants
that the execution and delivery of this Agreement and any other
document or instrument executed in connection with this Agreement, and
the consummation of the transactions contemplated thereby, and
compliance with the requirements thereof, will not violate any law,
rule, regulation, order, writ, judgment, injunction, decree or award
binding on Purchaser, or the provision of any indenture, instrument or
agreement to which Purchaser is a party or is subject, or by which
Purchaser or any of its properties is bound, or conflict with or
constitute a material default thereunder, or result in the creation or
imposition of any lien pursuant to the terms of any such indenture,
instrument or agreement, or constitute a breach of any fiduciary duty
owed by such Purchaser to any third party, or require the approval of
any third-party pursuant to any material contract, agreement,
instrument, relationship or legal obligation to which Purchaser is
subject or to which any of its properties, operations or management may
be subject.
7. Sole Party in Interest. Purchaser represents that it is the sole and
true party in interest, and no other person or entity has or will have upon the
issuance of the Securities beneficial ownership interest in the Securities or
any portion thereof, whether direct or indirect (excluding any contractual right
to payments based on the value of such Securities), other than the equity
holders or beneficiaries of Purchaser or as set forth on Purchaser's Report on
Schedule 13D with respect to the Securities.
7.1. Investment Purpose. Purchaser represents that it is
acquiring the Securities for its own account and for investment
purposes and not for the account or benefit of any U.S. person or other
person or entity or for or with a view to resale or distribution.
7.2 Knowledge and Experience. Purchaser is experienced in
evaluating and making speculative investments, and has the capacity to
protect Purchaser's interests in connection with the acquisition of the
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Securities. Purchaser has such knowledge and experience in financial
and business matters in general, and investments in the Company in
particular, that Purchaser is capable of evaluating the merits and
risks of Purchaser's investment in the Company.
7.3 Disclosure, Access to Information. Purchaser confirms that
it has received, read, and understands this Agreement, and that all
documents, records, books and other information pertaining to
Purchaser's investment in the Company requested by Purchaser have been
made available for inspection and copying and that there are no
additional materials or documents that have been requested by Purchaser
that have not been made available by the Company. Purchaser further
acknowledges that since August 1997, Mr. Anthony Pilaro, a director of
the Purchaser, has served as a member of the Board of Directors of the
Company and that he currently serves as Chairman of the Board of
Directors. Purchaser acknowledges that the Company is subject to the
periodic reporting requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and Purchaser has reviewed or received
copies of any such reports that have been requested by it. Without
limiting the generality of the foregoing, Purchaser acknowledges that
it has received and has reviewed copies of the following documents and
materials, all of which are incorporated herein by reference:
(1) Annual Report on Form 10-KSB for the fiscal year
ended March 31, 1999 and 2000;
(2) Quarterly Reports on Form 10-Q for the quarters ended
June 30 and September 30, 2000;
(3) Current Reports on Form 8-K of the Company filed
since March 31,2000, if any; and
(4) The Private Offering Memorandum dated as of
November 3, 2000 in connection with the Company's
pending offer to sell up to $50,000,000 in shares of
Common Stock.
7.4 Exclusive Reliance on this Agreement. In making the
decision to purchase the Note, Purchaser has relied exclusively upon
information included in this Agreement or incorporated herein by
reference, and not on any other representations, promises or
information, whether written or verbal, by any person.
7.5 Advice of Counsel. Purchaser understands the terms and
conditions of this Agreement, has investigated all issues to
Purchaser's satisfaction, has consulted with such of Purchaser's own
legal counsel or other advisors as Purchaser deems necessary, and is
not relying, and has not relied on the Company, for an explanation of
the terms or conditions of this Agreement or any document or instrument
related to the transactions contemplated thereby. Purchaser further
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acknowledges, understands and agrees that, in arranging for the
preparation of this Agreement and all other documents and materials
related thereto, the Company has not attempted to procure, and has not
procured, legal representation for Purchaser.
7.6 Accuracy of Representations and Information. All
representations made by Purchaser in this Agreement, all documents and
instruments related to this Agreement, and all information provided by
Purchaser to the Company concerning Purchaser and its financial
position is correct and complete in all material respects as of the
date hereof. If there is any material change in such information before
the actual issuance of the Securities, Purchaser immediately will
provide such information to the Company.
7.7 No Representations. None of the following have ever
been represented, guaranteed, or warranted to Purchaser by the Company
or any of its employees, agents, representatives or affiliates, or any
broker or any other person, expressly or by implication:
(1) The approximate or exact length of time that
Purchaser will be required to remain as owner of the
Securities; or
(2) The percentage of profit or amount of or type of
consideration, profit or loss (including tax
write-offs or other tax benefits) to be realized, if
any, as a result of an investment in the Securities.
7.8 Federal Tax Matters. Purchaser has reviewed and
understands the federal income tax aspects of its purchase of the
Securities, and has received such advice in this regard as Purchaser
deems necessary from qualified sources such as attorneys, tax advisors
or accountants, and is not relying on any representative or employee of
the Company for such advice.
7.9 No Brokers or Finders. Purchaser represents that no third
person has in any way brought the parties together or been instrumental
in the negotiation, execution, or consummation of this Agreement or any
instrument, document or agreement related to this Agreement, other than
any financial advisor to the Purchaser whose fee or compensation in
connection with the matters covered by this Agreement is solely the
obligation of the Purchaser. Purchaser agrees to indemnify the Company
against any claim by any third person for any commission, brokerage
fee, finders fee, or other payment with respect to this Agreement or
the transactions contemplated hereby based upon any alleged agreement
or understanding between such party and such third person, whether
expressed or implied, arising from the actions of such party. The
covenants set forth in this Section shall survive the Closing Date and
the consummation of the transactions contemplated by this Agreement.
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8. Certain Risk Factors. Purchaser has been informed about and
fully understands that there are risks associated with an investment in the
Company, including those disclosed in documents incorporated herein by
reference.
9. Manner of Sale. At no time was Purchaser presented with or
solicited by or through any leaflet, public promotional meeting, television
advertisement or any other form of general solicitation or advertising.
10. Restricted Securities. Purchaser understands and acknowledges that
the Securities have not been registered under the Act, or any state securities
laws, and that they will be issued in reliance upon certain exemptions from the
registration requirements of those laws, and thus cannot be resold unless they
are registered under the Act or unless the Company has first received an opinion
of competent securities counsel that registration is not required for such
resale. Purchaser agrees that it will not resell any Securities unless such
resale transaction is in accordance with Regulation S and/or Rule 144 under the
Act, pursuant to registration under the Act, or pursuant to an available
exemption from registration. With regard to the restrictions on resales of the
Securities or any security underlying or into which the Securities are or may be
convertible, Purchaser is aware (i) of the limitations and applicability of
Securities and Exchange Commission Rule 144, (ii) that the Company will issue
stop transfer orders to its stock transfer agent in the event of attempts to
improperly transfer any such securities; and (iii) that a restrictive legend
will be placed on certificates representing the Securities and any security
underlying or into which any of the Securities are or will be convertible, which
legend will read substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED
PURSUANT TO A CLAIM OF EXEMPTION FROM THE REGISTRATION OR QUALIFICATION
PROVISIONS OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
STATE SECURITIES LAWS AND THEREFORE HAVE NOT BEEN REGISTERED UNDER THE
ACT OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT
BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT
COMPLIANCE WITH THE PROVISIONS OF REGULATION S OR, IF APPLICABLE, RULE
144 UNDER THE ACT, COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION
PROVISIONS OF THE ACT OR APPLICABLE STATE LAWS, OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS. THE COMPANY
WILL INSTRUCT ITS STOCK TRANSFER AGENT NOT TO RECOGNIZE ANY SALE OF
THESE SECURITIES UNLESS SUCH SALE IS MADE PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR THE COMPANY HAS FIRST RECEIVED
AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS SECURITIES
COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
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11. Indemnification. The Company agrees to indemnify the Purchaser, its
officers, employees and agents, and any persons controlling the Purchaser and
hold them harmless from and against any and all liability, damage, cost or
expense, including attorney's fees, incurred on account or arising out of any
inaccuracy or omission in or breach of the declarations, covenants, agreements,
representations, and warranties by the Company set forth or incorporated by
reference herein.
12. Representations and Warranties of the Company. The Company
hereby represents and warrants to Purchaser as follows:
12.1 Organization, Standing, Etc. The Company is duly
organized, validly existing, and in good standing under the laws of the
State of Utah, and has the requisite power and authority to enter into
and perform this Agreement and to execute and perform under the
documents, instruments and agreements related to this Agreement.
12.2 Authorization. The execution and delivery of this
Agreement and the consummation of the transactions contemplated herein
have been duly authorized by all required action of the Company, and
each of the Transaction Documents and all instruments and agreements
to be delivered in connection therewith constitute its legal, valid
and binding obligation, enforceable against the Company in accordance
with their respective terms, subject to laws of general application
relating to the rights of creditors generally. The qualified directors
of the Company have authorized this Agreement and the consummation of
the transactions contemplated hereby in accordance with the provisions
of Section 16-10a-852 of the Utah Business Corporation Act. Subsequent
to the Closing, the Company shall secure approval or ratification by
the shareholders of the Company of the issuance of the Securities
pursuant to any applicable requirements of Nasdaq, or the Company
shall secure a waiver from Nasdaq of any applicable Nasdaq shareholder
approval requirements.
12.3 Absence of Conflicts. Neither the execution and delivery
of the Transaction Documents or any other agreement or instrument to be
delivered to the Purchaser in connection therewith, nor the
consummation of the transactions contemplated thereby, by the Company,
shall (i) conflict with or result in a breach of or constitute a
violation or default under (A) any provision of the Articles of
Incorporation or By-laws, each as amended to date, of the Company, or
(B) the provision of any indenture, instrument or agreement to which
the Company is a party or by which it or any of its properties is
bound, or (C) any order, writ, judgment, award, injunction, decree,
law, statute, rule or regulation, license or permit applicable to the
Company; (ii) result in the creation or imposition of any lien pursuant
to the terms of any such indenture, instrument or agreement, or
constitute a breach of any fiduciary duty owned by the Company to any
third party, or (iii) except as may be required pursuant to the January
2000 Stock Purchase Agreement between the Company and the Pequot
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entities, or pursuant to the Securities Purchase Agreement, as amended
August 3, 2000, between the Company the Note purchasers identified
therein, require the approval of any third party pursuant to any
material contract, agreement, instrument, relationship or legal
obligation to which the Company is subject or to which it or any of its
properties, operations or management may be subject.
12.4. Capitalization. The authorized capital stock of the
Company consists of 50,000,000 shares of Common Stock par value $.001
per share. As of October 24, 2000, 24,054,276 shares of Common Stock
were issued and outstanding, and no shares were held in the Company's
treasury. All of the outstanding shares of Common Stock are, and the
Shares will be, when paid for and issued, duly authorized, validly
issued, fully paid and non-assessable and free of any preemptive
rights.
12.5 Financial Statements. The Company's annual report on Form
10-KSB for the fiscal year ended March 31, 2000 (the "10-K"), and its
quarterly reports on Form 10-Q for the periods ended June 30 and
September 30, 2000 (the "10-Qs"), all 8-K's filed by the Company since
March 31, 2000 (the "8-K's), and the Company's 2000 Annual Proxy
Statement, copies of which have been filed with or furnished to the
Securities and Exchange Commission, were when filed or furnished,
accurate in all material respects and did not include any untrue
statement of material fact or omit to state any material fact necessary
to make the statements therein not misleading. The financial statements
included in the 10-K's and the 10-Q's (the "Financial Statements")
present fairly the financial position of the Company at such dates and
the results of its operations and cash flows for the periods then
ended, in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods covered by such
statements.
12.6 Litigation, Etc. Except as disclosed in the 10-K's, the
10-Q's, and the 8-K's, there are no (a) suits, actions or legal,
administrative, arbitration or other proceedings or governmental
investigations or other controversies pending, or to the knowledge of
the Company threatened, or as to which the Company has received any
notice, claim or assertion, or (b) obligations or liabilities (other
than obligations and liabilities arising in the ordinary course of
business subsequent to September 30, 2000), whether accrued, contingent
or otherwise, which, in either case (a) or (b) involve a potential cost
or liability to the Company which would singly or in the aggregate,
materially or adversely affect the financial condition, results of
operations, business or prospects of the Company. The Company is not in
default with respect to any order, writ, injunction or decree of any
court or before any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign affecting or relating to it which is material to
the financial condition, results of operations or business of the
Company.
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12.7 Brokers and Finders. Neither the Company nor any person
acting on behalf of the Company has employed any broker, agent or
finder, or incurred any liability for any brokerage fees, agents'
commissions or finders' fees, in connection with the transactions
contemplated herein. The Company agrees to indemnify Purchaser, its
directors, officers and controlling persons, against any claim by any
third person for any commission, brokerage fee, finders fee, or other
payment with respect to this Agreement or the transactions contemplated
hereby based upon any alleged agreement or understanding between such
party and such third person, whether expressed or implied, arising from
the actions of such party. The covenants set forth in this Section
shall survive the Closing Date and the consummation of the transactions
contemplated by this Agreement.
12.8 Regulatory Compliance. To the best knowledge of the
Company, it has operated and is currently operating in compliance in
all material respects with all laws, rules, regulations, orders,
decrees, licenses or permits applicable to it or to its business. The
Company has not received any notice from the FDA or any other
governmental agency or authority of any noncompliance by the Company
with any law, rule, regulation, order, decree, license or permit
applicable to it or its business or properties.
12.9 Articles of Incorporation and By-laws. The Company has
delivered to the Purchaser copies of its Articles of Incorporation and
all amendments thereto, which copies are complete and correct. The
Company is not in default under or in violation of any provisions of
its Articles of Incorporation. The Company's Articles of Incorporation
have not been amended since the date of certification thereof and no
action has been taken for the purpose of effecting any amendment
thereto. The Company has delivered to the Purchaser copies of its
By-laws and all amendments thereto, which copies are complete and
correct. The Company is not in default under or in violation of any
provision of its By-laws.
12.10 Product Liability. Except as disclosed to Purchaser
prior to Closing, the Company has not received any notice, claim or
assertion regarding an actual or alleged liability of the Company with
respect to any of its products.
12.11 OEM Relationships. Except as disclosed to Purchaser
prior to Closing, the Company has not received any notice, claim or
assertion from or with respect to any OEM counterparty of the Company
regarding intention of such OEM party to either discontinue its
relationship with the Company or develop or market products in
competition with the Company.
12.12 Patents and Proprietary Rights. Except as disclosed to
Purchaser prior to Closing, the Company has no reason to believe that
any of its patents or proprietary rights infringes upon or otherwise
violates the patents or proprietary rights of any other party. Except
as disclosed to Purchaser prior to Closing, the Company has not
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received any notice, claim or assertion that its patents or proprietary
rights or products or proposed products infringe upon or otherwise
violate the patents or proprietary rights of any other party.
12.13 Unincorporated Documents or Materials. With respect to
any document or other materials received by the Purchaser from the
Company or its representatives which are incorporated herein by
reference, (i) the Company has no reason to believe any of such
documents and materials or any projections contained therein contain
errors or misstatements or do not adequately describe the transactions
contemplated by this Agreement or the status of the development of the
Company's technology and products, and (ii) such documents, materials
and projections were prepared by the Company and its management in good
faith.
12.14 Information. To the best knowledge of the Company, the
information concerning the Company set forth in or incorporated by
reference in this Agreement is complete and accurate in all material
respects and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the statements made,
in light of the circumstances under which they were made, not
misleading.
12.15 Board Determination. The Board of Directors of the
Company has made its own determination of the advisability of the
Company's entering into this Agreement and has considered all financial
and regulatory effects on the Company of the consummation of the
transactions contemplated hereby as they deemed necessary or advisable.
The Company has not relied on any representations or warranties of
Purchaser in connection with such determination other than the
representations and warranties of Purchaser contained herein.
13. Nondisclosure. Except as required by applicable securities laws,
rules and regulations, prior to the Closing Date, no press release or other
announcement concerning the transactions contemplated by this Agreement will be
issued except by mutual consent of the parties. This Agreement and all
negotiations and discussions between the parties in connection with this
Agreement shall be strictly confidential and will not be disclosed in any manner
prior to the Closing Date, except to employees and agents of the parties on a
need-to-know basis, as required by applicable law or regulations or as otherwise
agreed by the parties. After Closing, disclosure shall be at the sole discretion
of the Company, provided that Purchaser shall have the opportunity to review
such disclosure prior to publication.
14. Conditions to Closing. Closing of the transactions
contemplated by this Agreement shall be contingent upon the satisfaction of the
following conditions precedent:
14.1 Approvals, Waivers, Etc. BriteSmile shall have delivered
to Purchaser evidence of all approvals, including waivers and consents,
of its board of directors, government or third-parties which may be
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required for the sale of the Note, in full force and effect as of the
Closing Date.
14.2 Absence of Litigation. No litigation shall have been
threatened or shall be pending challenging the purchase of the Shares
contemplated by this Agreement or which could have a material adverse
effect on BriteSmile.
14.3 No Bankruptcy. BriteSmile shall not have filed for
bankruptcy protection, the appointment of a trustee or receiver,
assignment for the benefit of creditors, nor have taken any other
action designed to protect the Company, its property or assets from the
rights of creditors; and no other person shall have made any such
filing or taken any such action in respect of BriteSmile.
14.4 No Breach of Agreements. Neither the execution and
delivery of the Transactions Documents or any other agreement or
instrument to be delivered to the Purchaser in connection therewith,
nor the consummation of the transactions contemplated thereby, by the
Company, shall have conflicted with or resulted in a breach of or
constituted a violation or default under (A) any provision of the
Articles of Incorporation or By-laws, each as amended to date, of the
Company, or (B) the provision of any indenture, instrument or agreement
to which the Company is a party or by which it or any of its properties
is bound, or (C) any order, writ, judgment, award, injunction, decree,
law, statute, rule or regulation, license or permit applicable to the
Company.
14.5 Representations and Warranties. The representations and
warranties of the Company and Purchaser set forth in this Agreement
shall be true and correct in all material respects (disregarding, for
purposes of such determination of materiality, all qualifications in
such representations and warranties regarding "material") as of the
date of this Agreement and as of the Closing Date as though made on and
as of the Closing Date (except that representations and warranties that
by their terms speak as of the date of this Agreement or some other
date shall be true and correct only as of such date).
14.6 BriteSmile Board Approval. The "qualified directors" of
BriteSmile (within the meaning of Section 16-10a-850 of the Utah
Business Corporation Act) shall have authorized and approved the
transactions contemplated by this Agreement pursuant to the laws of the
state of Utah.
14.7 No Shareholder Approval Required Prior to Closing.
Counsel to BriteSmile shall be satisfied that no approval or
authorization of the transactions contemplated by this Agreement by the
shareholders of BriteSmile prior to Closing shall be required under or
pursuant to the rules and regulations promulgated by Nasdaq.
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15. General Provisions.
------------------
15.1 Attorneys' Fees. In the event of a default in the
performance of this Agreement or any document or instrument executed in
connection with this Agreement, the defaulting party, in addition to
all other obligations of performance hereunder, shall pay reasonable
attorneys' fees and costs incurred by the non-defaulting party to
enforce performance of this Agreement.
15.2 Choice of Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Utah,
including choice of law rules.
15.3 Counterparts. This Agreement may be executed in one or
more counterparts, each of which when so signed shall be deemed to be
an original, and such counterparts together shall constitute one and
the same instrument.
15.4 Entire Agreement. The Transaction Documents collectively
set forth the entire agreement between the parties as to the subject
matter hereof, supersede any and all prior or contemporaneous
agreements or understandings of the parties relating to the subject
matter of this Agreement, and may not be amended except by an
instrument in writing signed by all of the parties to this Agreement.
15.5 Expenses. The parties shall be responsible for and shall
pay their own costs and expenses, including without limitation
attorneys' fees and accountants' fees and expenses, in connection with
the conduct of the due diligence inquiry, negotiation, execution and
delivery of this Agreement and the instruments, documents and
agreements executed in connection with this Agreement. The Company
shall bear all expenses in connection with the listing of the Shares on
Nasdaq. Notwithstanding the foregoing, the Company shall pay any stock
transfer taxes payable in connection with the issue and sale of the
Shares to the Purchaser, and expenses which the Company is obligated to
pay under the Registration Rights Agreement with respect to the Shares.
15.6 Headings. The headings of the sections and paragraphs of
this Agreement have been inserted for convenience of reference only and
do not constitute a part of this Agreement.
15.7 Notices. All notices or other communications provided for
under this Agreement shall be in writing, and mailed, telecopied or
delivered by hand delivery or by overnight courier service, to the
parties at their respective addresses as indicated below or at such
other address as the parties may designate in writing:
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(1) If to Purchaser:
LCO Investments Limited
Canada Court
Upland Road, St. Peter Port
Guernsey, Channel Islands
With copies to:
Michael Yong
Cap Advisers Limited
36 Fitzwilliam Place
Dublin 2, Ireland
(Tel. 011-353-1-661-4433)
(Fax 011-353-1-661-2456)
Craigh Leonard
Richards & O'Neil, LLP
885 Third Avenue
New York, N.Y. 10022-4873
(Tel. 212-207-1200)
(Fax 212-750-9022)
(2) If to the Company:
BriteSmile, Inc.
John L. Reed, CEO
Paul A. Boyer, CFO
490 North Wiget Lane
Walnut Creek, CA 94598
With a copy to:
Jeffrey M. Jones, Esq.
Wayne D. Swan, Esq.
DURHAM, JONES & PINEGAR, P.C.
111 East Broadway, Suite 900
Salt Lake City, Utah 84111
Fax: (801) 415-3500
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All notices and communications shall be effective as follows: When
mailed, upon three (3) business days after deposit in the mail (postage
prepaid); when telecopied, upon confirmed transmission of the
telecopied notice; when hand delivered, upon delivery; and when sent by
overnight courier, the next business day after deposit of the notice
with the overnight courier.
15.8 Severability. Should any one or more of the provisions of
this Agreement be determined to be illegal or unenforceable, all other
provisions of this Agreement shall be given effect separately from the
provision or provisions determined to be illegal or unenforceable and
shall not be affected thereby.
15.9 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors, but
shall not be assignable by Purchaser without the prior written consent
of the Company; provided that Purchaser may assign its rights hereunder
and in the Registration Rights Agreement relating to the Shares to one
or more affiliates of Purchaser or to one or more charitable
foundations in circumstances where such assignees assume all
obligations of Purchaser thereunder and any such assignment does not
violate the Securities Act of 1933, and provided further that Purchaser
may sell or assign any or all of the Shares in accordance with this
Agreement and such Registration Rights Agreement.
15.10 Survival of Representations, Warranties and Covenants Closing. All
warranties, representations, indemnities and agreements made in this
Agreement by a party hereto shall survive the date of this Agreement,
the Closing Date, the consummation of the transactions contemplated by
this Agreement, and the issuance by the Company of the Securities.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date set forth below.
LCO INVESTMENTS LIMITED
BY:
---------------------------------------------------
TITLE: _______________________
DATE: December 5, 2000
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ACCEPTED AND AGREED:
BRITESMILE, INC.
BY:
------------------------------------------------
John L. Reed, Chief Executive Officer
DATE: December 5, 2000
