Exhibit 11
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BRITESMILE, INC.
______________________________________________________________________________
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
______________________________________________________________________________
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT,
THESE SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF,
EXCEPT PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT AND UPON OBTAINING AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR THE
COMPANY), SATISFACTORY TO THE COMPANY, THAT DISPOSITION OF THE SECURITIES MAY BE
MADE WITHOUT REGISTRATION OF THE SECURITIES UNDER THE ACT.
Warrant Holder: Xxxxxxxx X. Xxxxxx
Date of Xxxxx: March 4, 2002
Number of Covered Shares: 20,000
Exercise Price Per Share: $5.00
Termination Date: March 4, 2007
THIS CERTIFIES THAT XXXXXXXX X. XXXXXX (the "Holder") is entitled to
purchase, on the terms hereof, Twenty Thousand (20,000) shares of Common Stock
of BRITESMILE, INC., a Utah corporation (the "Company"), subject to adjustment
as provided herein.
1. Exercise of Warrant. The terms and conditions upon which this Warrant
may be exercised, and the Common Stock covered hereby (the "Warrant Stock") may
be purchased, are as follows:
1.1 Term. This Warrant may be exercised in whole or in part at any time and
from time to time commencing after the date hereof, but in no case may this
Warrant be exercised later than the close of business on March 4, 2007 (the
"Termination Date"), after which time this Warrant shall terminate and shall be
void and of no further force or effect.
1.2 Purchase Price. Except as adjusted pursuant to Section 2 hereof, the
per share purchase price for the shares of Warrant Stock shall be Five Dollars
($5.00) per share of Common Stock purchased.
1.3 Method of Exercise. The exercise of the purchase rights evidenced by
this Warrant shall be effected by: (a) the surrender of the Warrant, together
with a duly executed copy of the form of subscription attached hereto, to the
Company at its principal offices, and (b) the delivery of the purchase price by
wire transfer or cashier's check payable to the Company's order for the number
of shares for which the purchase rights hereunder are being exercised. All or a
portion of the purchase price may be paid by Holder by delivery of shares of
Common Stock owned by Holder and acceptable to the Company having an aggregate
Fair Market Value (as of the date of exercise) that is equal to the amount of
cash that would otherwise be required; and (ii) provided that the shares
underlying this Warrant have been registered pursuant to Holder's piggyback
registration rights granted pursuant to Holder's Registration Rights Agreement
with the Company of even date herewith, Holder may pay the purchase price by
authorizing a third party to sell shares of Common Stock (or a sufficient
portion of the shares) acquired upon exercise of the Warrant and remit to the
Company a sufficient portion of the sale proceeds to pay the entire purchase
price and any tax withholding resulting from such exercise. In the event this
Warrant is exercised in part at any time and not in whole, the Company shall
promptly issue and deliver to the Holder a replacement Warrant Agreement
reflecting the number of shares of Common Stock of the Company subject to the
Warrant after giving effect to the partial exercise.
1.4 Issuance of Shares. Upon the exercise of the purchase rights evidenced
by this Warrant, a certificate or certificates for the purchased shares shall be
issued to the Holder as soon as practicable (and in any event within three
business days after exercise).
2. Certain Adjustments.
2.1 Mergers, Consolidations or Sale of Assets. If at any time there shall
be a capital reorganization (other than a combination or subdivision of Warrant
Stock otherwise provided for herein), or a merger or consolidation of the
Company with or into another corporation, or the sale of the Company's
properties and assets as, or substantially as, an entirety to any other person,
then, as a part of such reorganization, merger, consolidation or sale, lawful
provision shall be made so that the Holder shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified in this
Warrant and upon payment of the purchase price, the number of shares of stock or
other securities or property of the Company or the successor corporation
resulting from such reorganization, merger, consolidation or sale, to which a
holder of the Warrant Stock would have been entitled under the provisions of the
agreement in such reorganization, merger, consolidation or sale if this Warrant
had been exercised immediately before that reorganization, merger, consolidation
or sale. In any such case, appropriate adjustment (as determined in good faith
by the Company's Board of Directors) shall be made in the application of the
provisions of this Warrant with respect to the rights and interests of the
Holder after the reorganization, merger, consolidation or sale to the end that
the provisions of this Warrant (including adjustment of the purchase price then
in effect and the number of shares of Warrant Stock) shall be applicable after
that event, as near as reasonably may be, in relation to any shares or other
property deliverable after that event upon exercise of this Warrant.
2.2 Splits and Subdivisions. In the event the Company should at any time or
from time to time fix a record date to effect a split or subdivision of the
outstanding shares of Common Stock or the determination of the holders of Common
Stock entitled to receive a dividend or other distribution payable in additional
shares of Common Stock or other securities or rights convertible into, or
entitling the holder thereof to receive directly or indirectly, additional
shares of Common Stock (hereinafter referred to as the "Common Stock
Equivalents") without payment of any consideration by such holder for the
additional shares of Common Stock or Common Stock Equivalents (including the
additional shares of Common Stock issuable upon conversion or exercise thereof),
then, as of such record date (or the date of such distribution, split or
subdivision if no record date is fixed), the purchase price hereunder shall be
appropriately decreased and the number of shares of Warrant Stock shall be
appropriately increased in proportion to such increase in outstanding shares.
2.3 Combination of Shares. If the number of shares of Common Stock
outstanding at any time after the date hereof is decreased by a combination of
the outstanding shares of Common Stock, the purchase price hereunder shall be
appropriately increased and the number of shares of Warrant Stock shall be
appropriately decreased in proportion to such decrease in outstanding shares.
2.4 Certificate as to Adjustments. In the case of each adjustment or
readjustment of the purchase price pursuant to this Section 2, the Company will
promptly compute such adjustment or readjustment in accordance with the terms
hereof and cause a certificate setting forth such adjustment or readjustment and
showing in detail the facts upon which such adjustment or readjustment is based
to be delivered to the Holder of this Warrant. The Company will, upon the
written request at any time of the Holder of this Warrant, furnish or cause to
be furnished to such Holder a certificate setting forth:
(a) Such adjustments and readjustments;
(b) The purchase price at the time in effect; and
(c) The number of shares of Warrant Stock and the amount, if any, of other
property at the time receivable upon the exercise of the Warrant.
3. Fractional Shares. No fractional shares shall be issued in connection
with any exercise of this Warrant.
4. Reservation of Common Stock. The Company shall at all times reserve and
keep available out of its authorized but unissued shares of Common Stock, solely
for the purpose of effecting the exercise of this Warrant, such number of its
shares of Common Stock as shall from time to time be sufficient to effect the
exercise of this Warrant; and if at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the exercise
of the entire Warrant, in addition to such other remedies as shall be available
to the Holder of this Warrant, the Company will use its reasonable best efforts
to take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purposes.
5. Privilege of Stock Ownership. Prior to the exercise of this Warrant, the
Holder shall not be entitled, by virtue of holding this Warrant, to any rights
of a stockholder of the Company.
6. Transfers and Exchanges.
6.1 Subject to the limitations set forth below and subject to compliance
with applicable federal and state securities laws, all or any part of this
Warrant and all rights hereunder are transferable in whole or in part by Xxxxxx.
The transfer shall be recorded on the books of the Company upon the surrender of
this Warrant, properly endorsed, to the Company at its principal offices and the
payment to the Company of all transfer taxes and other governmental charges
imposed on such transfer. In the event of a partial transfer, the Company shall
issue to the several holders one or more appropriate new Warrants. The Company
may deem and treat
the registered Holder as the absolute owner of the Warrant (notwithstanding any
notice of ownership or writing thereon made by anyone other than the Company)
for all purposes, and the Company will not be affected by any notice to the
contrary. No rights under and by virtue of this Warrant shall pass and be
transferred separately and apart from this Warrant.
6.2 All new Warrants issued in connection with transfers, exchanges or
partial exercises shall be identical in form and provision to this Warrant
except as to the number of shares issuable upon exercise thereof.
7. Successors and Assigns. The terms and provisions of this Warrant
Agreement shall be binding upon the Company and the Holder and their respective
successors and assigns, subject at all times to the restrictions set forth in
this Warrant Agreement.
8. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant Agreement, and, in case of loss, theft
or destruction, of indemnity or security reasonably satisfactory to the Company,
and upon reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of this Warrant Agreement, if
mutilated, the Company will make and deliver a new Warrant Agreement of like
tenor and dated as of such cancellation, in lieu of this Warrant Agreement.
9. Amendment. This Warrant Agreement and the terms of the Warrant may be
amended only with the written consent of the Holder and the Company set forth in
a writing specifying such amendment.
10. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein
shall be a Saturday or Sunday or shall be a legal holiday, then such action may
be taken or such right may be exercised, except as to the purchase price, on the
next succeeding day not a Saturday, Sunday or legal holiday.
11. Notices. Any notice or demand authorized by this Warrant shall be
sufficiently given or made, if in writing and personally served, sent by
telecopy followed by written confirmation of receipt, or deposited in the United
States mail, registered or certified, return receipt requested, postage prepaid,
at or to the address or telecopy number as the receiving party shall have
specified most recently by written notice to the other party. Notice shall be
deemed given on the date of service if personally served or if sent by telecopy.
Notice mailed as provided herein shall be deemed given on the next business day
following the date sent by Federal Express or comparable next-day-delivery
courier service, or on the third business day following the date mailed.
To the Company: BriteSmile, Inc.
Attn: Chief Executive Officer
000 Xxxxx Xxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax Number: (000) 000-0000
To the Holder: Xxxxxxxx X. Xxxxxx
Blackfin Capital
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax Number: (000) 000-0000
12. Investment Representation. The Holder, by accepting this Warrant,
represents that the Holder is acquiring the Warrant for his own account for
investment purposes and not with a view to any offer or distribution thereof and
that the Holder will not sell or otherwise dispose of the Warrant or the
underlying Warrant Stock in violation of applicable securities laws.
13. Certain Registration Rights. The shares of Common Stock underlying this
Warrant are subject to certain piggyback registration rights pursuant to the
Registration Rights Agreement between the Company and Holder of even date
herewith.
14. No Impairment. The Company will not, by amendment of its Articles of
Incorporation, as amended, or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company, but it will at
all times in good faith assist in the carrying out of all of the provisions of
this Warrant and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder of this Warrant against
impairment.
15. Miscellaneous. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought. This Warrant shall be governed by the laws of the State of Utah. The
headings of this Warrant are inserted for convenience only and shall not be
deemed to constitute a part hereof.
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DATED effective: March 4, 2002
BRITESMILE, INC.
By: __________________________________
Title: _______________________________
________________________________
XXXXXXXX X. XXXXXX
SUBSCRIPTION AND EXERCISE OF WARRANT
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BriteSmile, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
The undersigned hereby elects to purchase, pursuant to the provisions of
the Warrant held by the undersigned, ____________ shares of the Common Stock of
BriteSmile, Inc., a Utah corporation (the "Company").
The undersigned hereby represents and warrants that the undersigned is
acquiring such stock for its own account and not for resale or with a view to
distribution of any part thereof.
The [Warrant exercise price of $5.00 per share] [the adjusted Warrant
exercise price of $____ per share] being purchased hereby is enclosed with this
notice of exercise. The aggregate purchase price is $________________.
Dated: ________________________
________________________________
Xxxxxxxx X. Xxxxxx
(Social Security
or Taxpayer Identification
Number of Holder)
