UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(AMENDMENT NO. 15)
BRITESMILE, INC.
(Name of Issuer)
COMMON STOCK, PAR VALUE $.001 PER SHARE
(Title of Class of Securities)
110415205
(CUSIP Number)
CRAIGH LEONARD, ESQ.
BINGHAM MCCUTCHEN LLP
399 PARK AVENUE
NEW YORK, NEW YORK 10022-4689
(212) 705-7000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
NOVEMBER 20, 2003
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box. [ ]
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
SCHEDULE 13D
CUSIP NO. 110415205
(1) Name of reporting persons................... LCO INVESTMENTS LIMITED
S.S. or I.R.S. identification Nos. of
above persons..............................
(2) Check the appropriate box if a member of a (a) [X]
group (see instructions) (b) [ ]
(3) SEC use only................................
(4) Source of funds (see instructions).......... WC
(5) Check if disclosure of legal proceedings
is required pursuant to items 2(d) or 2(e).. [ ]
(6) Citizenship or place of organization........ GUERNSEY, CHANNEL ISLANDS
Number of shares beneficially owned by each
reporting person with:
(7) Sole voting power........................... 1,603,254 (which includes 180,588 shares
subject to acquisition within 60 days on
exercise of certain Warrants)
(8) Shared voting power......................... None
(9) Sole dispositive power...................... 1,603,254 (which includes 180,588 shares
subject to acquisition within 60 days on
exercise of certain Warrants)
(10) Shared dispositive power.................... None
(11) Aggregate amount beneficially owned 1,603,254 (which includes 180,588 shares
reporting person............................ subject to acquisition within 60 days on
exercise of certain Warrants)
(12) Check if the aggregate amount in Row (11)
excludes certain shares (see instructions).. [ ]
(13) Percent of class represented by amount in
Row (11).................................... 38.14%
(14) Type of reporting person (see instructions). CO
Page 2 of 16
SCHEDULE 13D
CUSIP NO. 110415205
(1) Name of reporting persons .................. THE ERSE TRUST
S.S. or I.R.S. identification Nos. of
above persons..............................
(2) Check the appropriate box if a (a) [X]
member of a group (see instructions) (b) [ ]
(3) SEC use only...............................
(4) Source of funds (see instructions).......... Not applicable
(5) Check if disclosure of legal
proceedings is required pursuant to
items 2(d) or 2(e).......................... [ ]
(6) Citizenship or place of organization........ GUERNSEY, CHANNEL ISLANDS
Number of shares beneficially owned by
each reporting person with:
(7) Sole voting power........................... None
(8) Shared voting power......................... None
(9) Sole dispositive power...................... None
(10) Shared dispositive power.................... None
(11) Aggregate amount beneficially owned 1,603,254 (which includes 180,588 shares
by each reporting person................... subject to acquisition within 60 days on exercise
of certain Warrants)
(12) Check if the aggregate amount in
Row (11) excludes certain shares (see
instructions)............................... [ ]
(13) Percent of class represented by
amount in Row (11).......................... 38.14%
(14) Type of reporting person (see
instructions)............................... OO(Trust)
The inclusion of The ERSE Trust in this Statement shall not be construed as an
admission that such party is, for purposes of Section 13(d) of the Securities
Exchange Act of 1934, the beneficial owner of any securities covered by this
Statement.
Page 3 of 16
SCHEDULE 13D
CUSIP NO. 110415205
(1) Name of reporting persons .................. CAP ADVISERS LIMITED
S.S. or I.R.S. identification Nos. of
above persons..............................
(2) Check the appropriate box if a (a) [X]
member of a group (see instructions). (b) [ ]
(3) SEC use only...............................
(4) Source of funds (see instructions).......... WC
(5) Check if disclosure of legal
proceedings is required pursuant to
items 2(d) or 2(e)......................... [ ]
(6) Citizenship or place of organization....... UNITED KINGDOM
Number of shares beneficially owned by
each reporting person with:
(7) Sole voting power........................... 4,267
(8) Shared voting power......................... 15,854
(9) Sole dispositive power...................... 4,267
(10) Shared dispositive power.................... 15,854
(11) Aggregate amount beneficially owned 1,623,375 (which includes 180,588 shares
by each reporting person................... subject to acquisition within 60 days on
exercise of certain Warrants)
(12) Check if the aggregate amount in
Row (11) excludes certain shares (see
instructions)............................... [ ]
(13) Percent of class represented by
amount in Row (11)......................... 38.67%
(14) Type of reporting person (see
instructions).............................. CO
Page 4 of 16
SCHEDULE 13D
CUSIP NO. 110415205
(1) Name of reporting persons .................. ANTHONY M. PILARO
S.S. or I.R.S. identification Nos. of
above persons...............................
(2) Check the appropriate box if a member (a) [X]
of a group (see instructions)............... (b) [ ]
(3) SEC use only................................
(4) Source of funds (see instructions).......... Not Applicable
(5) Check if disclosure of legal
proceedings is required pursuant to
items 2(d) or 2(e).......................... [ ]
(6) Citizenship or place of organization........ IRELAND
Number of shares beneficially owned by
each reporting person with:
(7) Sole voting power........................... None
(8) Shared voting power......................... None
(9) Sole dispositive power...................... None
(10) Shared dispositive power.................... None
(11) Aggregate amount beneficially owned 1,623,375 (which includes 180,588 shares
by each reporting person................... subject to acquisition within 60 days on
exercise of certain Warrants)
(12) Check if the aggregate amount in
Row (11) excludes certain shares (see
instructions)............................... [ ]
(13) Percent of class represented by 38.67%
amount in Row (11)..........................
(14) Type of reporting person (see instructions). IN
The inclusion of Anthony M. Pilaro in this Statement shall not be construed as
an admission that such person is, for purposes of Section 13(d) of the
Securities Exchange Act of 1934, the beneficial owner of any securities covered
by this Statement.
Page 5 of 16
SCHEDULE 13D
CUSIP NO. 110415205
(1) Name of reporting persons .................. THE LCP II TRUST
S.S. or I.R.S. identification Nos. of
above persons...............................
(2) Check the appropriate box if a (a) [X]
member of a group (see instructions)....... (b) [ ]
(3) SEC use only................................
(4) Source of funds (see instructions).......... Not Applicable
(5) Check if disclosure of legal
proceedings is required pursuant to
items 2(d) or 2(e).......................... [ ]
(6) Citizenship or place of organization........ JERSEY, CHANNEL ISLANDS
Number of shares beneficially owned by
each reporting person with:
(7) Sole voting power........................... 213,334
(8) Shared voting power......................... None
(9) Sole dispositive power...................... 213,334
(10) Shared dispositive power.................... None
(11) Aggregate amount beneficially owned 213,334
by each reporting person....................
(12) Check if the aggregate amount in
Row (11) excludes certain shares (see
instructions)............................... [ ]
(13) Percent of class represented by
amount in Row (11).......................... 5.3%
(14) Type of reporting person (see
instructions)............................... 00(Trust)
Page 6 of 16
SCHEDULE 13D
CUSIP NO. 110415205
(1) Name of reporting persons .................. AMP TRUST
S.S. or I.R.S. identification Nos. of
above persons..............................
(2) Check the appropriate box if a (a) [X]
member of a group (see instructions)....... (b) [ ]
(3) SEC use only................................
(4) Source of funds (see instructions).......... WC
(5) Check if disclosure of legal
proceedings is required pursuant to
items 2(d) or 2(e).......................... [ ]
(6) Citizenship or place of organization........ JERSEY, CHANNEL ISLANDS
Number of shares beneficially owned by
each reporting person with:
(7) Sole voting power........................... 1,800
(8) Shared voting power......................... None
(9) Sole dispositive power...................... 1,800
(10) Shared dispositive power.................... None
(11) Aggregate amount beneficially owned 1,800
by each reporting person...................
(12) Check if the aggregate amount in
Row (11) excludes certain shares (see
instructions).............................. [ ]
(13) Percent of class represented by
amount in Row (11)......................... 0.044%
(14) Type of reporting person (see
instructions).............................. 00 (Trust)
Page 7 of 16
SCHEDULE 13D
CUSIP NO. 110415205
(1) Name of reporting persons................... CAP CHARITABLE FOUNDATION
S.S. or I.R.S. identification Nos. of
above persons...............................
(2) Check the appropriate box if a (a) [X]
member of a group (see instructions)........ (b) [ ]
(3) SEC use only................................
(4) Source of funds (see instructions).......... Not Applicable
(5) Check if disclosure of legal
proceedings is required pursuant to
items 2(d) or 2(e).......................... [ ]
(6) Citizenship or place of organization........ GUERNSEY, CHANNEL ISLANDS
Number of shares beneficially owned by
each reporting person with:
(7) Sole voting power........................... 3,000
(8) Shared voting power......................... None
(9) Sole dispositive power...................... 3,000
(10) Shared dispositive power.................... None
(11) Aggregate amount beneficially owned 3,000
by each reporting person...................
(12) Check if the aggregate amount in
Row (11) excludes certain shares (see
instructions).............................. [ ]
(13) Percent of class represented by 0.075%
amount in Row (11).........................
(14) Type of reporting person (see
instructions).............................. 00(Trust)
Page 8 of 16
SCHEDULE 13D
CUSIP NO. 110415205
(1) Name of reporting persons .................. EXCIMER VISION LEASING L.P.
S.S. or I.R.S. identification Nos. of
above persons...............................
(2) Check the appropriate box if a (a) [X]
member of a group (see instructions)........ (b) [ ]
(3) SEC use only................................
(4) Source of funds (see instructions).......... WC
(5) Check if disclosure of legal proceedings is
required pursuant to items 2(d) or 2(e).....
(6) Citizenship or place of organization........ Delaware
Number of shares beneficially owned by each reporting
person with:
(7) Sole voting power........................... 127,268
(8) Shared voting power......................... None
(9) Sole dispositive power...................... 127,268
(10) Shared dispositive power.................... None
(11) Aggregate amount beneficially owned 127,268
by each reporting person....................
(12) Check if the aggregate amount in
Row (11) excludes certain shares (see
instructions)............................... [ ]
(13) Percent of class represented by 3.16%
amount in Row (11)..........................
(14) Type of reporting person (see instructions). PN
Page 9 of 16
SCHEDULE 13D
CUSIP NO. 110415205
(1) Name of reporting persons .................. CAP PROPERTIES LIMITED
S.S. or I.R.S. identification Nos.
of above persons............................
(2) Check the appropriate box if a (a) [X]
member of a group (see instructions)........ (b) [ ]
(3) SEC use only................................
(4) Source of funds (see instructions).......... WC
(5) Check if disclosure of legal
proceedings is required pursuant to
items 2(d) or 2(e)..........................
(6) Citizenship or place of organization........ Delaware
Number of shares beneficially owned by
each reporting person with:
(7) Sole voting power........................... 127,268 \1
(8) Shared voting power......................... None
(9) Sole dispositive power...................... 127,268 \1
(10) Shared dispositive power.................... None
(11) Aggregate amount beneficially owned 127,268 \1
by each reporting person...................
(12) Check if the aggregate amount in
Row (11) excludes certain shares (see
instructions).............................. [ ]
(13) Percent of class represented by amount in 3.16%
Row (11)...................................
(14) Type of reporting person (see instructions). CO
\1 CAP Properties is the general partner of Excimer Vision Leasing, L.P. and has
the sole right to vote the shares held directly by Excimer.
Page 10 of 16
BRITESMILE, INC. SCHEDULE 13D
AMENDMENT NO. 15
NOTE: This Amendment No. 15 relates to Common Stock of BriteSmile,
Inc. It amends a Statement on Schedule 13D originally filed on April 11, 1996
by LCO Investments Limited and others, as amended by an Amendment No. 1 filed
on December 6, 1996, by an Amendment No. 2 filed on May 23, 1997, by an
Amendment No. 3 filed on September 24, 1997, by an Amendment No. 4 filed on
December 1, 1997, by an Amendment No. 5 filed on May 11, 1998, by an Amendment
No. 6 filed on December 15, 1998, by an Amendment No. 7 filed on July 2, 1999,
by an Amendment No. 8 filed on November 8, 1999, by an Amendment No. 9 filed on
July 13, 2000, by an Amendment No. 10 filed on January 11, 2001, by an
Amendment No. 11 filed on July 23, 2001, by an Amendment No. 12 filed on
November 13, 2001, by an Amendment No. 13 filed on December 17, 2001 and by an
Amendment No. 14 filed on January 27, 2003. This Amendment No. 15 is filed on
behalf of LCO Investments Limited ("LCO INVESTMENTS"), The ERSE Trust, CAP
Advisers Limited, Anthony M. Pilaro, the LCP II Trust, the AMP Trust, CAP
Charitable Foundation, Excimer Vision Leasing L.P. ("EXCIMER") and CAP
Properties Limited ("CAP PROPERTIES").
This Amendment No. 15 is being filed, (a) to reflect the acquisition
by LCO Investments of 416,486 shares of Common Stock upon the conversion of a
promissory note issued by BriteSmile; (b) to reflect the acquisition by LCO
Investments of 204,725 shares of Common Stock in exchange for the cancellation
of $6,500,000 of debt owed to it by BriteSmile; (c) to reflect the acquisition
by Excimer of 127,286 shares of Common Stock in exchange for the cancellation
of $4,040,759 of debt owed to it by BriteSmile; and (d) to reflect the addition
of Excimer and CAP Properties each as a reporting person within this group.
There has been no change in the information set forth in response to Items 1, 4
and 6 of Schedule 13D. Accordingly, those Items are omitted from this Amendment
No. 15.
The inclusion of The ERSE Trust and Anthony M. Pilaro shall not be
construed as an admission that such parties are, for the purposes of Section
13(d) of the Securities Exchange Act of 1934, the beneficial owners of any
securities covered by this Statement.
ITEM 2. IDENTITY AND BACKGROUND.
Excimer Vision Leasing L.P.
(a) A person included within the group filing this Statement is
Excimer Vision Leasing L.P. ("Excimer").
(b) The business address of Excimer is 101 Ygnacio Valley Road,
Suite 212, Walnut Creek, CA.
(c) The principal business of Excimer is equipment leasing.
Page 11 of 16
(d) Excimer has not, during the last five years, been convicted
in any criminal proceeding (excluding any traffic violations or
similar misdemeanors).
(e) Excimer, during the last five years, has not been a party to
a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which proceeding it was or is subject to
a judgment, decree or final order enjoining future violations of or
prohibiting or mandating activities subject to federal or state
securities laws or finding any violation with respect to such laws.
(f) Excimer is a limited partnership organized under the laws of
the State of Delaware. CAP Properties is the sole general partner of
Excimer and the information relating to CAP Properties that is
required by Items 2(a)-(f) of Schedule 13D is set forth below.
CAP Properties Limited
(a) A person included within the group filing this Statement is
CAP Properties Limited ("CAP Properties").
(b) The business address of CAP Properties is c/o CAP Advisers
Limited, 36 Fitzwilliam Place, Dublin 2, Ireland.
(c) The principal business of CAP Properties is investments.
(d) CAP Properties has not, during the last five years, been
convicted in any criminal proceeding (excluding any traffic
violations or similar misdemeanors).
(e) CAP Properties, during the last five years, has not been a
party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which proceeding it was or is
subject to a judgment, decree or final order enjoining future
violations of or prohibiting or mandating activities subject to
federal or state securities laws or finding any violation with
respect to such laws.
(f) CAP Properties is a corporation organized under the laws of
the State of Delaware. The information required by Items 2(a)-(f) of
Schedule 13D relating to (i) each executive officer and director of
CAP Properties, and (ii) each person controlling CAP Properties is
set forth in Exhibit II which is incorporated herein by reference.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Reference is made to the cover pages of this statement for the source
of funds, if applicable, used by each person listed in Item 2 to acquire the
Common Stock which is beneficially owned by such person.
Page 12 of 16
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is amended to add the following paragraphs:
Item 5(a) is hereby amended to read in its entirety as follows:
Reference is made to the cover pages of this Statement for the
aggregate number and the percentage of BriteSmile's outstanding Common Stock
which is beneficially owned by each person listed in Item 2.
Item 5(c) is amended to add the following:
On November 10, 2003, LCO Investments converted a 2% promissory note
of BriteSmile due 11/20/07 into 416,486 shares of Common Stock for an aggregate
purchase price of $2,498,916.
On November 20, 2003, BriteSmile satisfied the $6,500,000 principal
amount of debt owed by it to LCO Investments by issuing to LCO Investments an
aggregate of 204,725 shares of Common Stock.
On November 20, 2003, BriteSmile satisfied $4,040,759 of payables
owed by it to Excimer by issuing to Excimer an aggregate of 127,268 shares of
Common Stock.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
EXHIBIT E which was previously filed, is the Power of
Attorney and Authorizing Agreement appointing Craigh Leonard
as Attorney-in-Fact and authorizing him to sign the Schedule
13D and all amendments thereto on behalf of LCO Investments,
The ERSE Trust, CAP Advisers Limited and Anthony M. Pilaro.
EXHIBIT AA which was previously filed as an exhibit to the
Form 3 filed by LCP II with respect to shares of Common
Stock, is the Power of Attorney appointing Craigh Leonard as
Attorney-in-Fact and authorizing him to sign the Schedule 13D
and all amendments thereto on behalf of The LCP II Trust.
EXHIBIT CC which was previously filed as an exhibit to the
Form 3 filed by AMP Trust with respect to shares of Common
Stock, is the Power of Attorney appointing Craigh Leonard as
Attorney-in-Fact and authorizing him to sign the Schedule 13D
and all amendments thereto on behalf of AMP Trust.
EXHIBIT DD which was previously filed as an Exhibit to the
Form 3 filed by CAP Charitable Foundation with respect to
shares of Common Stock, is the Power of Attorney appointing
Craigh Leonard as Attorney-in-Fact and authorizing him to
sign the Schedule 13D and all amendments thereto on behalf of
CAP Charitable Foundation.
Page 13 of 16
EXHIBIT FF is the Amended and Restated Joint Filing Agreement
among LCO Investments Limited, the ERSE Trust, CAP Advisers
Limited, Anthony M. Pilaro, the LCP II Trust, the AMP Trust,
CAP Charitable Foundation, Excimer Vision Leasing L.P. and
CAP Properties Limited, dated November 24, 2003.
EXHIBIT GG is the CAP Line Conversion Agreement, dated as of
November 20, 2003, by and between BriteSmile and LCO
Investments Limited.
EXHIBIT HH is the Receivables Conversion Agreement, dated as
of November 20, 2003, by and between BriteSmile and Excimer
Vision Leasing L.P.
EXHIBIT II contains the information required by Items
2(a)-(f) of Schedule 13D with respect to each executive
officer and director of CAP Properties and each person
controlling CAP Properties.
Page 14 of 16
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
we certify that the information set forth in this Statement is true, complete
and correct.
Dated: November 24, 2003
LCO INVESTMENTS LIMITED
By: /s/ Craigh Leonard
Craigh Leonard, Attorney-in-Fact
THE ERSE TRUST
By: /s/ Craigh Leonard
Craigh Leonard, Attorney-in-Fact
CAP ADVISERS LIMITED
By: /s/ Craigh Leonard
Craigh Leonard, Attorney-in-Fact
/s/ Craigh Leonard
Anthony M. Pilaro, by Craigh Leonard,
Attorney-in-Fact
LCP II TRUST
By: /s/ Craigh Leonard
Craigh Leonard, Attorney-in-Fact
AMP TRUST
By: /s/ Craigh Leonard
Craigh Leonard, Attorney-in-Fact
Page 15 of 16
CAP CHARITABLE FOUNDATION
By: /s/ Craigh Leonard
Craigh Leonard, Attorney-in-Fact
CAP PROPERTIES LIMITED
By: /s/ Craigh Leonard
Craigh Leonard, President
EXCIMER VISION LEASING
BY: CAP PROPERTIES LIMITED,
ITS GENERAL PARTNER
By: /s/ Craigh Leonard
Craigh Leonard, President
Page 16 of 16
EXHIBIT FF
AMENDED AND RESTATED
JOINT FILING AGREEMENT AMONG
LCO INVESTMENTS LIMITED, THE ERSE TRUST,
CAP ADVISERS LIMITED, ANTHONY M. PILARO,
THE LCP II TRUST, AMP TRUST,
CAP CHARITABLE FOUNDATION, EXCIMER VISION LEASING, L.P.
AND CAP PROPERTIES LIMITED
Agreement, dated as of November 24, 2003 among LCO Investments
Limited, The ERSE Trust, CAP Advisers Limited, Anthony M. Pilaro, LCP II Trust,
AMP Trust, CAP Charitable Foundation, Excimer Vision Leasing and CAP Properties
Limited.
W I T N E S S E T H:
WHEREAS, this Agreement amends and restates the Amended and Restated
Joint Filing Agreement among LCO Investments Limited, The ERSE Trust, CAP
Advisers Limited, Anthony M. Pilaro, LCP II Trust, AMP Trust and CAP Charitable
Foundation, dated as of January 17, 2003; and
WHEREAS, in accordance with Rule 13d-1(k) under the Securities and
Exchange Act of 1934 (the "Act"), only one Statement and any amendments thereto
need be filed whenever two or more persons are required to file such Statement
or amendments thereto pursuant to Section 13(d) of the Act with respect to the
same securities, provided that said persons agree in writing that such
Statement or any amendments thereto is filed on behalf of them.
NOW, THEREFORE, in consideration of the premises and mutual
agreements herein contained, the parties hereto agree as follows:
LCO Investments Limited, the ERSE Trust, CAP Advisers Limited,
Anthony M. Pilaro, LCP II Trust, AMP Trust, CAP Charitable Foundation, Excimer
Vision Leasing and CAP Properties Limited do hereby agree, in accordance with
Rule 13d-1(k) under the Act, to file one joint statement on Schedule 13D
relating to their ownership of the Common Stock of BriteSmile, Inc., and do
hereby further agree that Amendment No. 15 to Schedule 13D and any amendments
hereafter required to be made to such joint statement shall be filed on behalf
of each of them.
LCO INVESTMENTS LIMITED
By: /s/ Craigh Leonard
Craigh Leonard, Attorney-in-Fact
EXHIBIT FF
THE ERSE TRUST
By: /s/ Craigh Leonard
Craigh Leonard, Attorney-in-Fact
CAP ADVISERS LIMITED
By: /s/ Craigh Leonard
Craigh Leonard, Attorney-in-Fact
/s/ Craigh Leonard
Anthony M. Pilaro, by Craigh Leonard,
Attorney-in-Fact
LCP II TRUST
By: /s/ Craigh Leonard
Craigh Leonard, Attorney-in-Fact
AMP TRUST
By: /s/ Craigh Leonard
Craigh Leonard, Attorney-in-Fact
CAP CHARITABLE FOUNDATION
By: /s/ Craigh Leonard
Craigh Leonard, Attorney-in-Fact
EXCIMER VISION LEASING L.P.
BY: CAP PROPERTIES LIMITED, ITS GENERAL
PARTNER
By: /s/ Craigh Leonard
Craigh Leonard, President
EXHIBIT FF
CAP PROPERTIES LIMITED
By: /s/ Craigh Leonard
Craigh Leonard, President
EXHIBIT GG
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.
CAP LINE CONVERSION AGREEMENT
This CAP Line Conversion Agreement ("Agreement") is made and entered
into as of the 20th day of November, 2003 by and between BriteSmile, Inc., a
Utah corporation ("BriteSmile" or the "Company"), and LCO Investments Limited, a
Guernsey corporation ("LCO").
A. On December 13, 2001, BriteSmile International Limited, an
Irish Company ("BSML International"), and CAP Advisers Limited
("CAP"), an English company, entered into a Credit and
Security Agreement, as amended by a March 8, 2002 Supplement,
a July 22, 2002 Supplement, and a January 9, 2003 Supplement
(the "Credit Agreement").
B. Effective as of the date hereof, CAP has assigned all of its
rights and obligations under the Credit Agreement to LCO, and
LCO has assumed all such rights and obligations.
C. Effective as of the date hereof, BSML International has
assigned all of its rights and obligations under the Credit
Agreement to BriteSmile, and BriteSmile has assumed all such
rights and obligations.
D. Accordingly, as of the date hereof, the Company owes LCO
accrued principal and interest under the Credit Agreement in
the amount of $6,500,000 (the "Obligation");
E. The Company wishes to discharge the Obligation and to cancel
and terminate the Credit Agreement by issuing to LCO shares of
the Company's common stock par value $.001 per share ("Common
Stock"), and LCO wishes to accept such shares of Common Stock
in satisfaction of the Obligation; and
F. In consideration of LCO's agreement to accept such shares in
satisfaction of the Obligation, the Company has authorized the
issuance to LCO of the number of shares of Common Stock
referred to below;
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. Satisfaction of Obligation; Termination of Credit Agreement; and Stock
Purchase. The Company and LCO agree that the amount of the Obligation
that remains unpaid under the Credit Agreement as of the date hereof is
$6,500,000. The Company and LCO agree that the Obligation shall be
deemed discharged and paid in full by the issuance by the Company to
LCO of such number of shares of Common Stock (the "Shares") as have a
value, based on the higher of (i) $31.75 per share or (ii) the closing
sale price of Common Stock as quoted on NASDAQ on the effective date of
this Agreement, equal to $6,500,000. Upon receipt of the Shares, the
Obligation shall be deemed satisfied in full, and the Credit Agreement
shall be cancelled and terminated and shall be of no further force or
effect. Notwithstanding anything to the contrary in this Agreement, the
shares of Common Stock that may be issued under this Section 1,
together with the shares of Common Stock that may be issued under that
certain Receivable Conversion Agreement between the Company and Excimer
Vision Leasing L.P., a Delaware limited partnership, dated of even date
herewith, shall under no circumstances (A) in the aggregate equal or
exceed in number 10% of the number of shares of Common Stock
outstanding immediately before such issuances or (B) represent 10% or
more of the voting power of the shares of BriteSmile Common Stock
outstanding immediately before such issuances. If the number of Shares
otherwise issuable to LCO pursuant to this Section 1 is limited by the
foregoing provision, then (A) the portion of the Obligation in excess
of the value of the Shares actually issued (based on the higher of (i)
$31.75 per share or (ii) the closing sale price of Common Stock on
Nasdaq on the effective date of this Agreement) shall remain due and
payable in cash by BriteSmile pursuant to this Agreement, and (B) the
portion of the Obligation deemed cancelled by the issuance of such
Shares shall be first applied to any interest included therein.
2. Registration Rights. The Shares shall be subject to certain
registration rights, as provided in that certain Registration Rights
Agreement dated as of May 9, 2003 (the "Registration Rights
Agreement"), between LCO and the Company, a copy of which is attached
hereto as Exhibit "B". The Registration Rights Agreement is hereby
amended to include the Shares as registrable securities under Sections
1 and 2 thereof. (Such Registration Rights Agreement, as amended
hereby, together with this Agreement constitute the "Transaction
Documents").
3. Closing. The cancellation by LCO of the Company's Obligation the
issuance of the Shares and delivery of the 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, effective as
of the date hereof, or on such later date as the parties may hereafter
agree (the "Closing Date").
4. Representations and Warranties of LCO. LCO hereby represents and
warrants to the Company and its agents and attorneys as follows:
4.1. Investor Status. LCO 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.
4.2. Liquidity. LCO 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. LCO is capable
of bearing the economic risk and the burden of the investment
contemplated by this Agreement, including, but not limited to, the
possibility of the complete loss of the value of the Shares, and the
limited transferability of the Shares, which may make the liquidation
of the Shares impossible in the near future.
2
4.3. Organization, Standing, Authorization. LCO is duly organized, validly
existing, and in good standing under the laws of Guernsey, and has the
requisite power and authority to enter into this Agreement, acquire the
Shares, 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 LCO in
connection with any of the transactions contemplated by this Agreement,
have been duly authorized by all required action of LCO. The person
executing, on LCO's behalf, this Agreement and any other documents or
instruments executed by LCO in connection with this Agreement is duly
authorized to do so.
4.4. Absence of Conflicts. LCO 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 LCO, or
the provision of any indenture, instrument or agreement to which LCO
is a party or is subject, or by which LCO 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 LCO 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 LCO is subject or to which any of its properties, operations or
management may be subject.
4.5. Sole Party in Interest. LCO 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 Shares beneficial ownership interest in the Shares
or any portion thereof, whether direct or indirect (excluding any
contractual right to payments based on the value of such Shares), other
than the equity holders or beneficiaries of LCO or as set forth on
LCO's or such equity holders' or beneficiaries' Reports on Schedule 13D
or Forms 4 with respect to the Shares.
4.6. Investment Purpose. LCO represents that it is acquiring the Shares for
its own account and for investment purposes and not for the account or
benefit of any other person or entity or for or with a view to resale
or distribution.
4.7. Knowledge and Experience. LCO is experienced in evaluating and making
speculative investments, and has the capacity to protect LCO's
interests in connection with the acquisition of the Shares. LCO has
such knowledge and experience in financial and business matters in
general, and investments in the Company in particular, that LCO is
capable of evaluating the merits and risks of LCO's investment in the
Company.
4.8. Disclosure, Access to Information. LCO confirms that it has received,
read, and understands this Agreement, and that all documents, records,
books and other information pertaining to LCO's investment in the
Company requested by LCO have been made available for inspection and
copying and that there are no additional materials or documents that
have been requested by LCO that have not been made available by the
3
Company. LCO further acknowledges that Anthony Pilaro is a director and
executive officer of the Company. LCO acknowledges that the Company is
subject to the periodic reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and LCO has
reviewed or received copies of any and all such reports that have been
filed by the Company with the SEC to date.
4.9. Exclusive Reliance on this Agreement. In making the decision to
purchase the Shares, LCO 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.
4.10. Advice of Counsel. LCO understands the terms and conditions of this
Agreement, has investigated all issues to LCO's satisfaction, has
consulted with such of LCO's own legal counsel or other advisors as LCO
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.
4.11. No Representations. None of the following has ever been represented,
guaranteed, or warranted to LCO by the Company or any of its employees,
agents, representatives or affiliates, or any broker or any other
person, expressly or by implication:
(a) The approximate or exact length of time that LCO will be required to
remain as owner of the Shares; or
(b) 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 Shares.
4.12. Federal Tax Matters. LCO has reviewed and understands the federal
income tax aspects of its purchase of the Shares, and has received such
advice in this regard as LCO 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.
5. Certain Risk Factors. LCO 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.
6. Manner of Sale. At no time was LCO presented with or solicited by or
through any leaflet, public promotional meeting, television
advertisement or any other form of general solicitation or advertising.
7. Restricted Securities. LCO understands and acknowledges that the Shares
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. LCO agrees that it will
4
not resell any Shares 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 Shares,
LCO 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 Shares and any
security underlying or into which any of the Shares 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.
8. Representations and Warranties of the Company. The Company hereby
represents and warrants to LCO as follows:
8.1. 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.
8.2. 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 Company shall
5
timely comply with any notice filing, approval or ratification
requirements under the rules and regulations of Nasdaq relating to the
issuance of the Shares, or the Company shall secure a waiver from
Nasdaq of any applicable Nasdaq filing or approval requirements.
Without limiting the generality of the foregoing, the Company shall
file the Notification Form: Change in the Number of Shares
Outstanding, no later than 10 days after the Closing Date, as required
by Nasdaq Marketplace Rule 4310(17)(24).
8.3. Due Issuance. When issued and delivered pursuant to the terms of this
Agreement, the Shares will be duly authorized, validly issued, fully
paid and nonassessable, free of all preemptive rights and shall be
Registrable Securities as such term is defined in the Registration
Rights Agreement.
8.4. Absence of Conflicts. Neither the execution and delivery of the
Transaction Documents or any other agreement or instrument to be
delivered to LCO 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)
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.
8.5. Capitalization. The authorized capital stock of the Company consists of
50,000,000 shares of Common Stock par value $.001 per share. As of the
Closing Date, 3,324,309 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, when paid for and issued,
duly authorized, validly issued, fully paid and non-assessable and free
of any preemptive rights.
8.6. Financial Statements. The Company's annual report on Form 10-K for the
fiscal year ended December 28, 2002 (the "10-K"), and its quarterly
reports on Form 10-Q for the periods since that date (the "10-Qs"),
all 8-K's filed by the Company since December 28, 2002 (the "8-Ks"),
and the Company's 2003 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.
6
8.7. 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), 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.
8.8. 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.
8.9. Articles of Incorporation and By-laws. The Company's 10-K Annual Report
contains as Exhibits thereto copies of the Company's Articles of
Incorporation and all amendments thereto, and the Company's By-laws 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 or By-laws.
8.10. Product Liability. Except as disclosed to LCO 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.
8.11. OEM Relationships. Except as disclosed to LCO prior to Closing, the
Company has not received any notice, claim or assertion from or with
respect to any OEM party of the Company regarding any intention of such
OEM party to either discontinue its relationship with the Company or
develop or market products in competition with the Company.
8.12. Patents and Proprietary Rights. Except as disclosed to LCO 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 LCO
prior to Closing, the Company has not 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.
8.13. Unincorporated Documents or Materials. With respect to any document or
other materials received by LCO 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
7
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.
8.14. 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.
8.15. 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 LCO in connection with
such determination other than the representations and warranties of LCO
contained herein.
9. 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 and in compliance with appropriate rules and regulations of
applicable securities laws, provided that LCO shall have the
opportunity to review such disclosure prior to publication.
10. General Provisions.
10.1. 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.
10.2. 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.
10.3. 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.
10.4. 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
8
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.
10.5. 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 LCO, and
expenses which the Company is obligated to pay under the Registration
Rights Agreement with respect to the Shares.
10.6. 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.
10.7. 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:
If to LCO:
LCO Investments Limited
Kensington Chambers
46-50 Kensington Place
St. Helier
Jersey, Channel Islands
With copies to:
Brian Delaney
Cap Advisers Limited
36 Fitzwilliam Place
Dublin 2, Ireland
(Tel. 011-353-1-661-4433)
(Fax 011-353-1-661-2456)
Craigh Leonard
Bingham McCutchen LLP
399 Park Avenue
New York, N.Y. 10022
(Tel. 212-705-7222)
(Fax. 212-702-3615)
(1) If to the Company:
BriteSmile, Inc.
John C. Dong, 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
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.
10.8. 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.
10.9. 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 LCO without the prior written consent of the Company;
provided that LCO may assign its rights hereunder and in the
Registration Rights Agreement relating to the Shares to one or more
affiliates of LCO or to one or more charitable foundations in
circumstances where such assignees assume all obligations of LCO
thereunder and any such assignment does not violate the Securities Act
of 1933, and provided further that LCO may sell or assign any or all of
the Shares in accordance with this Agreement and such Registration
Rights Agreement.
10.10. 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 Shares.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date set forth below.
LCO INVESTMENTS LIMITED
By: /s/ Brian Delaney
------------------------------------------------
Title: Authorized Officer
--------------------------------------------
Date: November 20, 2003
ACCEPTED AND AGREED:
BRITESMILE, INC.
By: /s/ John Dong
------------------------------------------------
Title: Chief Financial Officer
-----------------------------------------------
Date: November 20, 2003
EXHIBIT HH
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.
RECEIVABLE CONVERSION AGREEMENT
This Receivable Conversion Agreement ("Agreement") is made and entered into
as of the day of November, 2003 by and between BriteSmile, Inc., a Utah
corporation ("BriteSmile" or the "Company"), and Excimer Vision Leasing L.P., a
Delaware limited partnership ("EVL").
A. Pursuant to an Amended and Restated Agreement between EVL and
the Company dated February 28, 2001, as amended (the "Lease
Agreement"), the Company owes EVL certain amounts on account
of Variable Rent, as such term is defined in the Lease
Agreement ("Variable Rent"), that accrued during the years
2002 and 2003 but remains unpaid;
B. The Company wishes to discharge its obligation to pay the said
accrued but unpaid Variable Rent and the interest due thereon
by issuing EVL shares of the Company's common stock par value
$.001 per share ("Common Stock"), and EVL wishes to accept
such shares of Common Stock in satisfaction of the amount due
on account of such unpaid Variable Rent and the interest due
thereon; and
C. In consideration of EVL's agreement to accept such shares in
satisfaction of such obligation, the Company has authorized
the issuance to EVL of the number of shares of Common Stock
referred to below;
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. Satisfaction of Lease Obligation and Stock Purchase. The Company and
EVL agree that the amount of Variable Rent that has accrued but remains
unpaid under the Lease Agreement with respect to the calendar year 2002
("Deferred 2002 Variable Rent") is $2,172,000 and that the amount of
Variable Rent that has accrued but remains unpaid under the Lease
Agreement during the portion of the calendar year 2003 ending on
October 31, 2003 is $1,868,750 ("Deferred 2003 Variable Rent"). The
Company and EVL agree that the Company's obligation to pay Deferred
2002 Variable Rent and Deferred 2003 Variable Rent, (such amounts,
excluding any interest due thereon, collectively "Total Deferred 2002
and 2003 Variable Rent") shall be deemed discharged and paid in full by
1
the issuance by the Company to EVL of such number of shares of Common
Stock (the "Shares") as have a value, based on the higher of (i) $31.75
per share or (ii) the closing sale price of Common Stock as quoted on
NASDAQ on the effective date of this Agreement, equal to the Total
Deferred 2002 and 2003 Variable Rent. Notwithstanding anything to the
contrary in this Agreement, the shares of Common Stock that may be
issued under this Section 1 together with the shares of Common Stock
that may be issued under that certain CAP Line Conversion Agreement
between the Company and LCO Investments Limited, a Guernsey
corporation, of even date herewith shall under no circumstances (A) in
the aggregate equal or exceed in number 10% of the number of shares of
Common Stock outstanding immediately before such issuance or (B)
represent 10% or more of the voting power of the shares of BriteSmile
Common Stock outstanding immediately before such issuance. If the
number of Shares otherwise issuable to EVL pursuant to this Section 1
is limited by the foregoing provision, then (A) the portion of Total
Deferred 2002 and 2003 Variable Rent in excess of the value of the
Shares actually issued (based on the higher of (i) $31.75 per share or
(ii) the closing sale price of Common Stock on Nasdaq on the effective
date of this Agreement) shall remain due and payable in cash by
BriteSmile, and (B) the portion of the Total Deferred 2002 and 2003
Variable Rent deemed cancelled by the issuance of such Shares shall be
first Deferred 2003 Variable Rent and next Deferred 2002 Variable Rent.
2. Registration Rights. The Shares shall be subject to certain
registration rights, as provided in that certain Amended and Restated
Registration Rights Agreement dated as of May 9, 2003 (the
"Registration Rights Agreement"), between LCO Investments Limited and
the Company, a copy of which is attached hereto as Exhibit "B". The
Registration Rights Agreement is hereby amended to add EVL as a party
thereto and to include the Shares as registrable securities under
Sections 1 and 2 thereof. (Such Registration Rights Agreement, as
amended hereby, together with this Agreement constitute the
"Transaction Documents").
3. Closing. The cancellation by EVL of the Company's obligation to pay
Total Deferred 2002 and 2003 Variable Rent, the issuance of the Shares
and delivery of the 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, effective as of the date hereof, or on
such later date as the parties may hereafter agree (the "Closing
Date").
4. Representations and Warranties of EVL. EVL hereby represents and
warrants to the Company and its agents and attorneys as follows:
4.1. Investor Status. EVL 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.
4.2. Liquidity. EVL 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. EVL is capable
of bearing the economic risk and the burden of the investment
contemplated by this Agreement, including, but not limited to, the
possibility of the complete loss of the value of the Shares, and the
2
limited transferability of the Shares, which may make the liquidation
of the Shares impossible in the near future.
4.3. Organization, Standing, Authorization. EVL is duly organized, validly
existing, and in good standing under the laws of Delaware, and has the
requisite power and authority to enter into this Agreement, acquire
the Shares, 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 EVL in
connection with any of the transactions contemplated by this
Agreement, have been duly authorized by all required action of EVL.
The person executing, on EVL's behalf, this Agreement and any other
documents or instruments executed by EVL in connection with this
Agreement is duly authorized to do so.
4.4. Absence of Conflicts. EVL 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 EVL, or
the provision of any indenture, instrument or agreement to which EVL
is a party or is subject, or by which EVL 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 EVL 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 EVL is subject or to which any of its properties, operations or
management may be subject.
4.5. Sole Party in Interest. EVL 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 Shares beneficial ownership interest in the Shares
or any portion thereof, whether direct or indirect (excluding any
contractual right to payments based on the value of such Shares), other
than the equity holders or beneficiaries of EVL or as set forth on
EVL's or such equity holders' or beneficiaries' Reports on Schedule 13D
or Forms 4 with respect to the Shares.
4.6. Investment Purpose. EVL represents that it is acquiring the Shares for
its own account and for investment purposes and not for the account or
benefit of any other person or entity or for or with a view to resale
or distribution.
4.7. Knowledge and Experience. EVL is experienced in evaluating and making
speculative investments, and has the capacity to protect EVL's
interests in connection with the acquisition of the Shares. EVL has
such knowledge and experience in financial and business matters in
general, and investments in the Company in particular, that EVL is
capable of evaluating the merits and risks of EVL's investment in the
Company.
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4.8. Disclosure, Access to Information. EVL confirms that it has received,
read, and understands this Agreement, and that all documents, records,
books and other information pertaining to EVL's investment in the
Company requested by EVL have been made available for inspection and
copying and that there are no additional materials or documents that
have been requested by EVL that have not been made available by the
Company. EVL further acknowledges that Anthony Pilaro is a director
and executive officer of the Company. EVL acknowledges that the
Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
EVL has reviewed or received copies of any and all such reports that
have been filed by the Company with the SEC to date.
4.9. Exclusive Reliance on this Agreement. In making the decision to
purchase the Note, EVL 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.
4.10. Advice of Counsel. EVL understands the terms and conditions of this
Agreement, has investigated all issues to EVL's satisfaction, has
consulted with such of EVL's own legal counsel or other advisors as EVL
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.
4.11. No Representations. None of the following have ever been represented,
guaranteed, or warranted to EVL by the Company or any of its employees,
agents, representatives or affiliates, or any broker or any other
person, expressly or by implication:
(a) The approximate or exact length of time that EVL will be required to
remain as owner of the Shares; or
(b) 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 Shares.
4.12. Federal Tax Matters. EVL has reviewed and understands the federal
income tax aspects of its purchase of the Shares, and has received such
advice in this regard as EVL 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.
5. Certain Risk Factors. EVL 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.
4
6. Manner of Sale. At no time was EVL presented with or solicited by or
through any leaflet, public promotional meeting, television
advertisement or any other form of general solicitation or advertising.
7. Restricted Securities. EVL understands and acknowledges that the Shares
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. EVL agrees that it will
not resell any Shares 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 Shares,
EVL 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 Shares and any
security underlying or into which any of the Shares 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.
5
8. Representations and Warranties of the Company. The Company hereby
represents and warrants to EVL as follows:
8.1. 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.
8.2. 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 Company shall
timely comply with any notice filing, approval or ratification
requirements under the rules and regulations of Nasdaq relating to the
issuance of the Shares, or the Company shall secure a waiver from
Nasdaq of any applicable Nasdaq filing or approval requirements.
Without limiting the generality of the foregoing, the Company shall
file the Notification Form: Change in the Number of Shares
Outstanding, no later than 10 days after the Closing Date, as required
by Nasdaq Marketplace Rule 4310(17)(24).
8.3. Due Issuance. When issued and delivered pursuant to the terms of this
Agreement, the Shares will be duly authorized, validly issued, fully
paid and nonassessable, free of all preemptive rights and shall be
Registrable Securities as such term is defined in the Registration
Rights Agreement.
8.4. Absence of Conflicts. Neither the execution and delivery of the
Transaction Documents or any other agreement or instrument to be
delivered to EVL 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)
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.
8.5. Capitalization. The authorized capital stock of the Company consists of
50,000,000 shares of Common Stock par value $.001 per share. As of
November 20, 2003, 3,324,309 shares of Common Stock were issued and
6
outstanding, and no shares were held in the Company's treasury. All of
the outstanding shares of Common Stock are, when paid for and issued,
duly authorized, validly issued, fully paid and non-assessable and free
of any preemptive rights.
8.6. Financial Statements. The Company's annual report on Form 10-K for the
fiscal year ended December 28, 2002 (the "10-K"), and its quarterly
reports on Form 10-Q for the periods since that date (the "10-Qs"),
all 8-K's filed by the Company since December 28, 2002 (the "8-Ks"),
and the Company's 2003 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.
8.7. 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), 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.
8.8. 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.
8.9. Articles of Incorporation and By-laws. The Company's 10-K Annual Report
contains as Exhibits thereto copies of the Company's Articles of
Incorporation and all amendments thereto, and the Company's By-laws 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 or By-laws.
7
8.10. Product Liability. Except as disclosed to EVL 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.
8.11. OEM Relationships. Except as disclosed to EVL prior to Closing, the
Company has not received any notice, claim or assertion from or with
respect to any OEM party of the Company regarding any intention of such
OEM party to either discontinue its relationship with the Company or
develop or market products in competition with the Company.
8.12. Patents and Proprietary Rights. Except as disclosed to EVL 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 EVL
prior to Closing, the Company has not 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.
8.13. Unincorporated Documents or Materials. With respect to any document or
other materials received by EVL 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.
8.14. 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.
8.15. 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 EVL in connection with
such determination other than the representations and warranties of EVL
contained herein.
9. 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
8
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 and in compliance with appropriate rules and regulations of
applicable securities laws, provided that EVL shall have the
opportunity to review such disclosure prior to publication.
10. General Provisions.
10.1. 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.
10.2. 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.
10.3. 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.
10.4. 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.
10.5. 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 EVL, and
expenses which the Company is obligated to pay under the Registration
Rights Agreement with respect to the Shares.
10.6. 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.
10.7. 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:
9
If to EVL:
Excimer Vision Leasing L.P.
101 Ygnacio Valley Road
Suite 212
Walnut Creek, CA 94596
With copies to:
Brian Delaney
Cap Advisers Limited
36 Fitzwilliam Place
Dublin 2, Ireland
(Tel. 011-353-1-661-4433)
(Fax 011-353-1-661-2456)
Craigh Leonard
Bingham McCutchen LLP
399 Park Avenue
New York, N.Y. 10022
(Tel. 212-705-7222)
(Fax. 212-702-3615)
(1) If to the Company:
BriteSmile, Inc.
John C. Dong, 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
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.
10.8. 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.
10.9. 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 EVL without the prior written consent of the Company;
provided that EVL may assign its rights hereunder and in the
Registration Rights Agreement relating to the Shares to one or more
affiliates of EVL or to one or more charitable foundations in
circumstances where such assignees assume all obligations of EVL
thereunder and any such assignment does not violate the Securities Act
of 1933, and provided further that EVL may sell or assign any or all of
the Shares in accordance with this Agreement and such Registration
Rights Agreement.
10.10. 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 Shares.
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IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date set forth below.
EXCIMER VISION LEASING L.P.
By: CAP Properties Limited,
as General Partner
By: /s/ Andrew C. Pilaro
Title: Director
Date: November 20, 2003
ACCEPTED AND AGREED:
BRITESMILE, INC.
By: /s/ John Dong
Title: Chief Financial Officer
-------------------------------------------------------
Date: November 20, 2003
EXHIBIT II
INFORMATION REQUIRED BY ITEMS 2(A)-(F)
RELATING TO EACH EXECUTIVE OFFICER AND DIRECTOR
OF CAP PROPERTIES LIMITED ("CAP PROPERTIES") AND EACH PERSON
CONTROLLING CAP PROPERTIES
CAP PROPERTIES
(a) Name: The name of the sole executive officer of CAP Properties is
Craigh Leonard. The names of the sole directors of CAP Properties are Craigh
Leonard and Andrew M. Pilaro.
(b) Residence or business address: The business address of Craigh
Leonard is c/o Bingham McCutchen, 399 Park Avenue, New York, N.Y. 10022-4689.
The business address of Andrew M. Pilaro is 36 Fitzwilliam Place, Dublin 2,
Ireland.
(c) Principal Occupation. As his principal occupation Craigh Leonard
serves as a lawyer with the firm of Bingham McCutchen LLP, 399 Park Avenue, New
York, N.Y. 10022-4689. As his principal occupation Andrew M. Pilaro serves as
Chief Executive Officer of CAP Advisers Limited, 36 Fitzwilliam Place, Dublin
Ireland.
(d) Convictions: During the last five years neither Craigh Leonard
nor Andrew M. Pilaro has been convicted in a criminal proceeding (excluding
traffic violations and similar misdemeanors).
(e) Civil Proceedings: During the last five years, neither Craigh
Leonard nor Andrew Pilaro has been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to federal
or state securities laws or finding any violations with respect to such laws.
(f) Citizenship: Each of Craigh Leonard and Andrew M. Pilaro is a
citizen of the United States.
EACH PERSON CONTROLLING CAP PROPERTIES
(a) Name: CAP Properties is a wholly owned subsidiary of LCO
Investments Limited.
The information relating to LCO Investments Limited that is required
by Items 2(a)-(f) of Schedule 13D appears in Item 2 and Exhibit A to this
Schedule 13D and is incorporated herein by reference.