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 REGULATIONS PROMULGATED UNDER THE ACT. THE SECURITIES HAVE
NOT BEEN APPROVED OR DISAPPROVED BY ANY REGULATORY AUTHORITY. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
NOTE PURCHASE AGREEMENT
(LCO Investments Limited)
This Note Purchase Agreement ("Agreement") is made and entered into as
of the 29th day of April, 2003 by and among BriteSmile, Inc., a Utah corporation
("BriteSmile Parent") BriteSmile Development, Inc., a Delaware corporation and
wholly-owned subsidiary of BriteSmile Parent ("BriteSmile Development"), and LCO
Investments Limited ("Purchaser").
A. Pursuant to that certain letter agreement dated April 29,
2003, signed by Purchaser, R. Xxxx Xxxxxxxxxx, BriteSmile
Parent, and BriteSmile Development (the "Letter Agreement"),
BriteSmile Development desires to borrow Two Million Dollars
($2,000,000) from Purchaser and Purchaser desires to lend
$2,000,000 to BriteSmile Development.
B. Pursuant to the Letter Agreement, Purchaser and R. Xxxx
Xxxxxxxxxx have agreed to provide up to $3,000,000 in
financing to BriteSmile Parent and/or BriteSmile Development
for purposes of financing the acquisition by BriteSmile
Development of human oral care intellectual property (the
"Intellectual Property") from R. Xxxx Xxxxxxxxxx and his
affiliates.
C. The terms of BriteSmile Development's purchase of Intellectual
Property are set forth in that certain Memorandum of
Understanding (the "MOU") dated May 9, 2003 between and among
R. Xxxx Xxxxxxxxxx, Oraceutical LLC, Oraceutical Innovative
Properties and their affiliates, BriteSmile Development, and
BriteSmile Parent.
D. Capitalized terms used in this Agreement but not defined
herein shall have the meanings ascribed to such terms in the
Letter Agreement and the MOU.
E. In consideration of the loan amount, BriteSmile Development
has authorized the issuance to Purchaser of promissory notes
in the aggregate principal amount of 2,000,000, to be
guaranteed by BriteSmile Parent.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, and other valuable consideration, the receipt of
which is hereby acknowledged, the parties covenant and agree as follows:
1. Loan and Purchase of Notes. BriteSmile Development agrees to borrow Two
Million Dollars ($2,000,000) from Purchaser and Purchaser agrees to lend to
BriteSmile Development $2,000,000 (the "Loan"), pursuant to the terms and
conditions of this Agreement. The Loan shall be made by Purchaser in two
installments of $1,000,000 each (the "First Installment" and "Second
Installment"). BriteSmile Development's obligations with respect to each
installment will be evidenced by the form of Note attached to this Agreement as
Exhibit "A" and by this reference incorporated herein. Each Note evidencing the
First Installment and the Second Installment will be guaranteed by BriteSmile
Parent pursuant to the form of Note Guaranty attached to this Agreement as
Exhibit "B" and by this reference incorporated herein. The total purchase price
(the "Purchase Price") for the two Notes shall be Two Million Dollars. The
Purchaser shall pay the Purchase Price in the amounts and on the Closing Dates,
as hereinafter defined, via wire transfer to an account of BriteSmile
Development. Wire instructions shall be provided prior to the Closing Dates.
2. Warrants to Purchase Common Stock of BriteSmile Parent. Effective
April 29, 2003 (the date of the Letter Agreement and the date hereof),
BriteSmile Parent shall grant to Purchaser 5 year warrants to purchase up to
Sixty-six Thousand Six Hundred Sixty-six (66,666) shares of Common Stock of
BriteSmile Parent at an exercise price of Fifteen Dollars ($15.00) per share.
Effective the date of the Second Closing (as defined herein, BriteSmile Parent
shall grant to Purchaser additional 5 year warrants to purchase up to Sixty-six
Thousand Six Hundred Sixty-seven (66,667) shares of Common Stock of BriteSmile
Parent at an exercise price of Fifteen Dollars ($15.00) per share. All warrants
granted or to be granted pursuant to this Section 2 to purchase an aggregate of
133,333 shares (the "Shares") are referred to herein as the "Warrants."
Purchaser's rights to acquire the Shares shall be as set forth in the form of
Warrant Agreement attached to this Agreement as Exhibit "C"(the "Warrant
Agreement") and by this reference incorporated herein. The Notes, together with
the Warrants and the Shares, shall be referred to collectively in this Agreement
as the "Securities". Exercise of the Warrants shall be conditioned upon
compliance by the parties hereto with all applicable regulatory and securities
law requirements.
3. Registration Rights. The Shares shall be subject to certain
piggyback registration rights, as provided in the form of Registration Rights
Agreement attached to this Agreement as Exhbit "D" and by this reference
incorporated herein (the "Registration Rights Agreement"). Such Registration
Rights Agreement, together with this Agreement, the Notes, the Guaranties, and
the Warrant Agreements, constitute the "Transaction Documents."
4. Closings. Payment of the First Installment by the Purchaser and
delivery of the First Installment Note and the Guaranty by BriteSmile
Development and BriteSmile Parent shall constitute the first closing
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contemplated by this Agreement (the "First Closing"). The First Closing shall
occur on or before the date of signing of the MOU (the "First Closing Date").
Payment of the Second Installment by the Purchaser and delivery of the Second
Installment Note and related Guaranty and Warrant Agreement by BriteSmile
Development and BriteSmile Parent shall constitute the second closing
contemplated by this Agreement (the "Second Closing"). The Second Closing shall
occur on such date as the Definitive Agreements (as defined in the MOU) are
signed by the parties thereto (the "Second Closing Date").
5. Use and Disposition of Proceeds. Proceeds of the Loan will be used
by BriteSmile Development to fund and close the transactions contemplated by the
MOU.
6. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to BriteSmile Parent, BriteSmile Development and their
agents and attorneys as follows:
6.1 Investor Status. Purchaser is an "accredited investor"
within the meaning of Section 501(a) of Regulation D under the Act, or
is not a "U.S. Person" as that term is defined under Rule 902(o)(1) of
Regulation S under the Act.
6.2 Liquidity. Purchaser presently has sufficient liquid
assets to pay the Purchase Price. Purchaser has adequate means of
providing for its current needs and contingencies and has no need for
liquidity in its investment in BriteSmile Development or for a source
of income from BriteSmile Development. Purchaser 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 Securities, and the limited
transferability of the Securities, which may make the liquidation of
the Securities impossible in the near future.
6.3 Organization, Standing, Authorization. Purchaser is duly
organized, validly existing, and in good standing under the laws of
Guernsey, Channel Islands, and has the requisite power and authority to
enter into this Agreement and execute and deliver any documents or
instruments in connection with this Agreement. The execution and
delivery of this Agreement, and all other documents and instruments
executed by Purchaser in connection with any of the transactions
contemplated by this Agreement, have been duly authorized by all
required action of Purchaser. The person executing this Agreement and
any other documents or instruments related thereto on behalf of
Purchaser is duly authorized to do so.
6.4 Absence of Conflicts. Purchaser represents and warrants
that the execution and delivery of this Agreement and any other
document or instrument executed in connection with this Agreement, and
the consummation of the transactions contemplated thereby, and
compliance with the requirements thereof, will not violate any law,
rule, regulation, order, writ, judgment, injunction, decree or award
binding on Purchaser, or the provision of any indenture, instrument or
agreement to which Purchaser is a party or is subject, or by which
3
Purchaser or any of its properties is bound, or conflict with or
constitute a material default thereunder, or result in the creation or
imposition of any lien pursuant to the terms of any such indenture,
instrument or agreement, or constitute a breach of any fiduciary duty
owed by such Purchaser to any third party, or require the approval of
any third-party pursuant to any material contract, agreement,
instrument, relationship or legal obligation to which Purchaser is
subject or to which any of its properties, operations or management may
be subject.
6.5 Sole Party in Interest. Purchaser represents that it is
the sole and true party in interest, and no other person or entity has
or will have upon the issuance of the Securities beneficial ownership
interest in the Securities or any portion thereof, whether direct or
indirect (excluding any contractual right to payments based on the
value of such Securities), other than the equity holders or
beneficiaries of Purchaser or as set forth on Purchaser's Reports on
Schedule 13D or Forms 4 with respect to the Securities.
6.6 Investment Purpose. Purchaser represents that it is
acquiring the Securities for its own account and for investment
purposes and not for the account or benefit of any other person or
entity or for or with a view to resale or distribution.
6.7 Knowledge and Experience. Purchaser is experienced in
evaluating and making speculative investments, and has the capacity to
protect Purchaser's interests in connection with the acquisition of the
Securities. Purchaser has such knowledge and experience in financial
and business matters in general, and investments in BriteSmile Parent
in particular, that Purchaser is capable of evaluating the merits and
risks of Purchaser's investment.
6.8 Disclosure, Access to Information. Purchaser confirms that
it has received, read, and understands this Agreement, and that all
documents, records, books and other information pertaining to
Purchaser's investment in BriteSmile Development and BriteSmile Parent
requested by Purchaser have been made available for inspection and
copying and that there are no additional materials or documents that
have been requested by Purchaser that have not been made available.
Purchaser further acknowledges that Xxxxxxx Xxxxxx and R. Xxxx
Xxxxxxxxxx are directors and/or executive officers of the Company.
Purchaser acknowledges that BriteSmile Parent is subject to the
periodic reporting requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and Purchaser has reviewed or received
copies of any and all such reports that have been filed by BriteSmile
Parent with the SEC to date.
6.9 Exclusive Reliance on this Agreement. In making the
decision to purchase the Securities, Purchaser has relied exclusively
upon information included in this Agreement or incorporated herein by
reference, and not on any other representations, promises or
information, whether written or verbal, by any person.
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6.10 Advice of Counsel. Purchaser understands the terms and
conditions of this Agreement, has investigated all issues to
Purchaser's satisfaction, has consulted with such of Purchaser's own
legal counsel or other advisors as Purchaser deems necessary, and is
not relying, and has not relied on BriteSmile Parent or BriteSmile
Development for an explanation of the terms or conditions of this
Agreement or any document or instrument related to the transactions
contemplated thereby.
6.11 No Representations. None of the following has ever been
represented, guaranteed, or warranted to Purchaser by BriteSmile Parent
or BriteSmile Development or any of their 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
Purchaser will be required to remain as owner of the
Securities; 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 Securities.
6.12 Federal Tax Matters. Purchaser has reviewed and
understands the federal income tax aspects of its purchase of the
Securities, and has received such advice in this regard as Purchaser
deems necessary from qualified sources such as attorneys, tax advisors
or accountants, and is not relying on any representative or employee of
BriteSmile Parent or BriteSmile Development for such advice.
6.13 Certain Risk Factors. Purchaser has been informed about
and fully understands that there are risks associated with an
investment in BriteSmile Parent or its subsidiaries, including those
disclosed in documents filed by BriteSmile Parent with the SEC pursuant
to the Exchange Act.
6.14 Manner of Sale. At no time was Purchaser presented with
or solicited by or through any leaflet, public promotional meeting,
television advertisement or any other form of general solicitation or
advertising.
6.15 Restricted Securities. Purchaser understands and
acknowledges that the Securities have not been registered under the
Act, or any state securities laws, and that they will be issued in
reliance upon certain exemptions from the registration requirements of
those laws, and thus cannot be resold unless they are registered under
the Act or unless the Company has first received an opinion of
competent securities counsel that registration is not required for such
resale. Purchaser agrees that it will not resell any Securities unless
such resale transaction is in accordance with Regulation S and/or Rule
144 under the Act, pursuant to registration under the Act, or pursuant
5
to an available exemption from registration. With regard to the
restrictions on resales of the Securities or any security underlying or
into which the Securities are or may be convertible, Purchaser is aware
(i) of the limitations and applicability of Securities and Exchange
Commission Rule 144, (ii) that the Company will issue stop transfer
orders to its stock transfer agent in the event of attempts to
improperly transfer any such securities; and (iii) that a restrictive
legend will be placed on certificates representing the Securities and
any security underlying or into which any of the Securities are or will
be convertible, which legend will read substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED
PURSUANT TO A CLAIM OF EXEMPTION FROM THE REGISTRATION OR QUALIFICATION
PROVISIONS OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
STATE SECURITIES LAWS AND THEREFORE HAVE NOT BEEN REGISTERED UNDER THE
ACT OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT
BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT
COMPLIANCE WITH THE PROVISIONS OF REGULATION S OR, IF APPLICABLE, RULE
144 UNDER THE ACT, COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION
PROVISIONS OF THE ACT OR APPLICABLE STATE LAWS, OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS. THE COMPANY
WILL INSTRUCT ITS STOCK TRANSFER AGENT NOT TO RECOGNIZE ANY SALE OF
THESE SECURITIES UNLESS SUCH SALE IS MADE PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR THE COMPANY HAS FIRST RECEIVED
AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS SECURITIES
COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
7. Representations and Warranties of BriteSmile Parent and BriteSmile
Development. BriteSmile Parent and BriteSmile Development hereby represent and
warrant to Purchaser as follows:
7.1 Organization, Standing, Etc. BriteSmile Parent and
BriteSmile Development are duly organized, validly existing, and in
good standing under the laws of the states in which they were
incorporated, and have 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.
7.2 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 BriteSmile Parent
and BriteSmile Development, and each of the Transaction Documents and
all instruments and agreements to be delivered in connection therewith
constitute legal, valid and binding obligations, enforceable against
6
BriteSmile Parent or BriteSmile Development, as the case may be, in
accordance with their respective terms, subject to laws of general
application relating to the rights of creditors generally. If required
under applicable regulations, BriteSmile Parent shall file notification
of this Agreement with Nasdaq and shall secure any required approvals
or ratifications of the issuance of the Shares pursuant to applicable
requirements of Nasdaq, or BriteSmile Parent shall secure a waiver from
Nasdaq of any applicable Nasdaq approval requirements.
7.3 Absence of Conflicts. Neither the execution and delivery
of the Transaction Documents or any other agreement or instrument to be
delivered to the Purchaser in connection therewith, nor the
consummation of the transactions contemplated thereby, by BriteSmile
Parent or BriteSmile Development, 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 Bylaws, each as amended
to date, of BriteSmile Parent or BriteSmile Development, or (B) the
provision of any indenture, instrument or agreement to which BriteSmile
Parent or BriteSmile Development is a party or by which they or any of
their properties is bound, or (C) any order, writ, judgment, award,
injunction, decree, law, statute, rule or regulation, license or permit
applicable to BriteSmile Parent or BriteSmile Development; (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 owed by BriteSmile Parent or BriteSmile Development 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 BriteSmile Parent or BriteSmile
Development is subject or to which they or any of their properties,
operations or management may be subject.
7.4 Capitalization. The authorized capital stock of BriteSmile
Parent consists of 50,000,000 shares of Common Stock par value $.001
per share. As of March 12, 2003, 2,428,539 shares of Common Stock were
issued and outstanding. All of the outstanding shares of Common Stock
are, and the Shares will be, when paid for and issued, duly authorized,
validly issued, fully paid and non-assessable and free of any
preemptive rights. The authorized capital stock of BriteSmile
Development consists of 1,000,000 shares of Common Stock par value
$0.001 per share, and 100,000 shares of Preferred Stock, par value
$0.001 per share. As of the date hereof, 100,000 shares of Common Stock
of BriteSmile Development are issued and outstanding and held of record
by BriteSmile Parent. All of the outstanding shares of Common Stock of
BriteSmile Development are duly authorized, validly issued, fully paid
and non-assessable and free of any preemptive rights.
7.5 Financial Statements. The Company's annual report on Form
10-K for the fiscal year ended December 28, 2002 (the "10-K") was when
filed with the SEC, accurate in all material respects and did not
include any untrue statement of material fact or omit to state any
7
material fact necessary to make the statements therein not misleading.
The financial statements included in the 10-K (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.
7.6 Litigation, Etc. Except as disclosed in the 10-K, 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 BriteSmile Parent or BriteSmile
Development threatened, or as to which BriteSmile Parent or BriteSmile
Development 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 BriteSmile Parent or BriteSmile
Development which would singly or in the aggregate, materially and
adversely affect the financial condition, results of operations,
business or prospects of BriteSmile Parent or BriteSmile Development.
Neither BriteSmile Parent nor BriteSmile Development is 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 either of them which is material to
the financial condition, results of operations or business of
BriteSmile Parent or BriteSmile Development.
7.7 Regulatory Compliance. To the best knowledge of BriteSmile
Parent and BriteSmile Development, such companies are currently
operating in compliance in all material respects with all laws, rules,
regulations, orders, decrees, licenses or permits applicable to them or
to their businesses. Neither company has received any notice from the
FDA or any other governmental agency or authority of any noncompliance
by either of them with any law, rule, regulation, order, decree,
license or permit applicable to them or their businesses or properties.
7.8 Articles of Incorporation and Bylaws. Copies of the
Articles of Incorporation and Bylaws of BriteSmile Parent and
BriteSmile Development as amended to date have been provided or made
available to Purchaser and are complete and correct. Neither BriteSmile
Parent nor BriteSmile Development is in default under or in violation
of any provisions of their Articles of Incorporation or Bylaws.
7.9 Product Liability. Except as may be disclosed to Purchaser
prior to Closing, neither BriteSmile Development nor BriteSmile Parent
has received any notice, claim or assertion regarding an actual or
alleged liability of BriteSmile Parent or BriteSmile Development with
respect to any of their products.
8
7.10 OEM Relationships. Except as may be disclosed to
Purchaser prior to Closing, neither BriteSmile Parent nor BriteSmile
Development has received any notice, claim or assertion from or with
respect to any OEM party regarding any intention of such OEM party to
either discontinue its relationship with BriteSmile Parent or
BriteSmile Development or develop or market products in competition
with BriteSmile Parent or BriteSmile Development.
7.11 Patents and Proprietary Rights. Except as may be
disclosed to Purchaser prior to Closing, neither BriteSmile Parent nor
BriteSmile Development has reason to believe that any of their patents
or proprietary rights infringes upon or otherwise violates the patents
or proprietary rights of any other party. Except as may be disclosed to
Purchaser prior to Closing, neither BriteSmile Parent nor BriteSmile
Development has 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.
7.12 Unincorporated Documents or Materials. With respect to
any document or other materials received by the Purchaser from
BriteSmile Parent or BriteSmile Development or its representatives
which are not incorporated herein by reference, (i) neither BriteSmile
Parent nor BriteSmile Development has 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
technology and products of BriteSmile Parent and BriteSmile
Development, and (ii) such documents, materials and projections were
prepared by BriteSmile Parent or BriteSmile Development and their
management in good faith.
7.13 Information. To the best knowledge of BriteSmile Parent
and BriteSmile Development, the information concerning them 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.
7.14 Nasdaq Listing. BriteSmile Parent shall make appropriate
filings under the rules of Nasdaq in order that the Shares will be
authorized for listing on Nasdaq, subject to Notice of Issuance.
8. Nondisclosure. Except as required by applicable securities laws,
rules and regulations, prior to the Closing Dates, 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 Dates, except to employees and agents of the parties on a
9
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 BriteSmile Parent or BriteSmile Development and in compliance with
appropriate rules and regulations of applicable securities laws, provided that
Purchaser shall have the opportunity to review such disclosure prior to
publication.
9. General Provisions.
9.1 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.
9.2 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.
9.3 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.
9.4 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.
9.5 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.
9.6 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.
9.7 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:
10
(1) If to Purchaser:
LCO Investments Limited
0 Xxx Xxxxxx
Xx. Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx Xxxxxxx
With copies to:
Xxxxx Xxxxxxx
Cap Advisers Limited
00 Xxxxxxxxxxx Xxxxx
Xxxxxx 0, Xxxxxxx
(Tel. 000-000-0-000-0000)
(Fax 000-000-0-000-0000)
Xxxxxx Xxxxxxx, Esq.
Xxxxxxx XxXxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000-0000
(Tel. 000-000-0000)
(Fax 000-000-0000)
(2) If to the Company:
BriteSmile, Inc.
Xxxx X. Xxxx, CFO
000 Xxxxx Xxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
With a copy to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxx, Esq.
DURHAM, XXXXX & XXXXXXX, P.C.
000 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Tel. (000) 000-0000
Fax: (000) 000-0000
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
11
overnight courier, the next business day after deposit of the notice
with the overnight courier.
9.8 Severability. If any one or more of the provisions of this
Agreement is determined by a court of competent jurisdiction 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.
9.9 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors, but
shall not be assignable by Purchaser without the prior written consent
of the Company; provided that Purchaser may assign its rights hereunder
to one or more affiliates of Purchaser or to one or more charitable
foundations in circumstances where such assignees assume all
obligations of Purchaser thereunder and any such assignment does not
violate the Securities Act of 1933, and provided further that Purchaser
may sell or assign any or all of the Shares in accordance with any
restrictions or limitations this Agreement.
9.10 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 Dates, the consummation of the transactions
contemplated by this Agreement, and the issuance of the Securities.
IN WITNESS WHEREOF, the parties have signed this Agreement effective
April 29, 2003.
LCO INVESTMENTS LIMITED
BY: _____________________________
TITLE: __________________________
BRITESMILE, INC.
BY: ____________________________
TITLE: __________________________
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BRITESMILE DEVELOPMENT, INC.
BY: ____________________________
TITLE: __________________________
