Exhibit 10.11
BRITESMILE, INC.
DIRECTOR STOCK OPTION AGREEMENT
(Revised 1997 Stock Option and Incentive Plan)
Participant: _____________________
Date of Grant: ___________________
Number of Covered Shares: ________
Exercise Price Per Share: ________
This Stock Option ("Agreement"), is entered into as of the _______ day
of ____________, 19____, between BriteSmile, Inc., a Utah corporation (the
"Company"), and _____________ ("Optionee").
WHEREAS, the Company has adopted the BriteSmile, Inc. Revised 1997
Stock Option and Incentive Plan (the "Plan") and has approved the granting to
certain directors of the Company of nonqualified options to purchase common
stock of the Company ("Common Stock"); and
WHEREAS, Optionee is a director of the Company, and the Company
desires to secure or increase Optionee's stock ownership of the Company in order
to increase Optionee's incentive and personal interest in the welfare of the
Company.
NOW, THEREFORE, in consideration of the premises, covenants and
agreements hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
have agreed and do hereby agree as follows:
1. Grant of Options; Vesting. The Company hereby grants to Optionee
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options (the "Options") to purchase all or any part of an aggregate amount of
____________________ (________) shares of the Common Stock of the Company at a
price of $____________ per share, on the terms and conditions hereinafter set
forth. One half (1/2) of the Options vest immediately upon the date hereof,
subject to any other restrictions on exercise set forth in this Agreement. The
remaining one half (1/2) of the Options shall vest and become exercisable on
that date which is six (6) months after the Date of Grant, provided that the
opitionee serves continually as a Director of the Company between the Date of
Grant and that date which is six (6) months after the Date of Grant, and subject
to any other restrictions on exercise set forth in this Agreement.
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2. Term of Options. Except as otherwise provided in Section 4 below,
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the Options shall be exercisable, in whole or in part, and at any time within
ten (10) years after the date of grant thereof, at which time the Options shall
terminate and not be exercisable thereafter. Unless the Company is advised
otherwise by its securities counsel, at least six (6) months must elapse from
the date of grant of the Option to the date of disposition by Optionee of the
shares of Common Stock underlying the Option.
3. Exercise of Options. The Options or any portion thereof may be
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exercised by Optionee paying the purchase price of any shares with respect to
which the Options are being exercised by cash, certified check, bank draft or
postal or express money order. Except as otherwise provided by the Plan
Committee before the Option is exercised, (i) all or a portion of the Exercise
Price may be paid by Optionee by delivery of shares of Common Stock owned by
Optionee and acceptable to the Plan Committee 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; or (ii) Optionee may pay the Exercise Price by
authorizing a third party to sell shares of Stock (or a sufficient portion of
the shares) acquired upon exercise of the Option and remit to the Company a
sufficient portion of the sale proceeds to pay the entire Exercise Price and any
tax withholding resulting from such exercise. In each case Optionee's payment
shall be delivered with a written notice of exercise which shall:
(a) State the number of shares being exercised, the name,
address and social security number of each person for whom the stock certificate
or certificates for such shares of the Common Stock are to be registered;
(b) Contain any representations and agreements as to Optionee's
investment intent with respect to the shares exercised as may be satisfactory to
the Company's counsel; and
(c) Be signed by the person or persons entitled to exercise the
Options and, if the Options are being exercised by any person or persons other
than Optionee, be accompanied by proof satisfactory to counsel for the Company
of the right of such person or persons to exercise the Options.
As a condition to the exercise of the Options, the Company may require
the person exercising the Options to make any representation and warranty to the
Company that may be required by any applicable law or regulation.
4. Termination of Directorship. If Optionee ceases to be a Director
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of the Company for any reason, any outstanding Options held by the Director
shall be exercisable according to the following provisions:
(a) If Optionee ceases to be a Director for any reason other
than resignation or removal for cause, subject to the provisions regarding death
of Optionee in paragraphs d-e below, any outstanding Option held by Optionee at
such time shall be exercisable
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by Optionee (but only if exercisable immediately prior to ceasing to be a
Director) at any time prior to the expiration date of such Option or within one
year after the date the grantee ceases to be a Director, whichever is the
shorter period;
(b) If during his term of office as a Director Optionee resigns
from the Board, any outstanding Option held by Optionee which is not exercisable
by him immediately prior to resignation shall terminate as of the date of
resignation, and any outstanding Option held by Optionee which is exercisable
immediately prior to resignation shall be exercisable at any time prior to the
expiration date of such Option or within six months after the date of
resignation, whichever is shorter;
(c) If during his term of office as a Director Optionee is
removed from office for cause, any outstanding Option held by Optionee which is
not exercisable by him immediately prior to removal, and any outstanding Option
held by Optionee which is exercisable immediately prior to removal, shall
terminate as of the date of removal for cause and may not be exercised;
(d) Following the death of Optionee during service as a Director
of the Company, any outstanding Option held by him at the time of death (whether
or not exercisable by the grantee immediately prior to death) shall be
exercisable by the person entitled to do so under the will of Optionee, or, if
Optionee shall fail to make testamentary disposition of the Option or shall die
intestate, by the legal representative of Optionee at any time prior to the
expiration date of such Option or within one year after the date of death of
Optionee, whichever is the shorter period;
(e) Following the death of Optionee after ceasing to be a
Director and during a period when an Option is exercisable under (a) or (b)
above, the Option shall be exercisable by such person entitled to do so under
the will of Optionee or by such legal representative at any time prior to the
expiration date of the Option or within one year after the date of death,
whichever is the shorter period;
For purposes of this Agreement, "retirement" and "disability" shall be
as determine. Removal "for cause" shall mean termination or removal as a result
of or caused by Optionee's theft or embezzlement from the Company, the violation
of a material term or condition of Optionee's employment (if optionee is
employed by the Company), substantial failure on the part of Optionee to perform
his duties as an employee or director, the disclosure by Optionee of
confidential information of the Company, willful misconduct or dishonesty or
conviction of or failure to contest prosecution for a felony or a crime of moral
turpitude, excessive absenteeism unrelated to illness, the Optionee's stealing
trade secrets or intellectual property owned by the Company, any act by Optionee
in competition with the Company, or any other act, activity or conduct of
Optionee which in the opinion of the Committee is adverse to the best interests
of the Company.
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5. Transfer of Options. Unless the Company, upon advice of its
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securities counsel, directs otherwise, the Options may not be assigned or
transferred in any manner except upon the death of Optionee by will or by the
laws of descent and distribution. During the lifetime of Optionee, the Options
shall be exercisable only by Optionee.
6. Reservation of Shares. The Company, during the term hereof, will
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at all times reserve and keep available, and will seek or obtain from any
regulatory body having jurisdiction any requisite authority in order to issue
and sell such number of shares of its Common Stock as shall be sufficient to
satisfy the requirements hereof. The inability of the Company to obtain from any
regulatory body having jurisdiction the authority deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any shares of stock
hereunder shall relieve the Company of any liability in respect of the
nonissuance or sale of such stock as to which such requisite authority shall not
have been obtained.
7. Application of Section 16(b). The parties acknowledge that
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inasmuch as Optionee is a director of the Company, the grant to Optionee of
Options hereunder, or Optionee's sale of shares underlying the Options, may,
unless the Plan is qualified under Rule 16b-3 of the SEC, subject Optionee to
liability under the xxxxxxx xxxxxxx prohibitions of Section 16(b) of the
Securities Exchange Act of 1934, if Optionee purchases or sells Common Stock of
the Company within six months before or after the grant of the Options, or
within six months before or after the sale of the shares underlying the Options.
This acknowledgment is for informational purposes only and is not to be
construed as increasing, limiting or describing the rights and obligations of
the parties hereunder.
8. Restriction on Option Exercise. Notwithstanding any contrary
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provision hereof, the Options may not be exercised by Optionee unless the shares
to be acquired by Optionee have been registered under the Securities Act of 1933
(the "Act"), and any other applicable securities laws of any other state, or the
Company receives an opinion of counsel (which may be counsel for the Company)
reasonably acceptable to the Company stating that the exercise of the Options
and the issuance of shares pursuant to the exercise is registered or exempt from
such registration requirements. Optionee shall represent that unless and until
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the shares have been registered under the Act and applicable state securities
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laws: (1) Optionee is acquiring the shares for investment purposes only and
without the intent of making any sale or disposition thereof; (2) Optionee has
been advised and understands that the shares have not been registered for sale
pursuant to federal and state securities laws and are "restricted securities"
under such laws; and (3) Optionee acknowledges that the shares will be subject
to stop transfer instructions and bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER STATE
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE
ABSENCE OF REGISTRATION OR THE AVAILABILITY OF AN EXEMPTION FROM SUCH
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REGISTRATION. NO OFFER, SALE OR TRANSFER MAY TAKE PLACE WITHOUT PRIOR
WRITTEN APPROVAL OF THE COMPANY BEING AFFIXED HERETO. IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT, SUCH APPROVAL SHALL BE GRANTED
ONLY IF THE COMPANY HAS RECEIVED AN OPINION OF SHAREHOLDER'S COUNSEL
AT SHAREHOLDER'S EXPENSE SATISFACTORY TO THE COMPANY TO THE EFFECT
THAT THIS CERTIFICATE MAY BE LAWFULLY TRANSFERRED PURSUANT TO AN
EXEMPTION FROM REGISTRATION.
9. Withholding of Taxes. The Options may not be exercised unless
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Optionee has paid or has made provision satisfactory to the Company for payment
of, federal, state and local income taxes, or any other taxes (other than stock
transfer taxes) which the Company may be obligated to collect as a result of the
issue or transfer of Common Stock upon such exercise of the Options. In its sole
discretion, and at the request of Optionee, the Company may permit Optionee
(other than an Optionee who would be subject to Section 16(b) of the Exchange
Act) to satisfy the obligation imposed by this Section, in whole or in part, by
instructing the Company to withhold up to that number of shares otherwise
issuable to Optionee with a fair market value equal to the amount of tax to be
withheld.
10. Merger. The Company hereby agrees that, in the event of the
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Company's reorganization, separation, merger or consolidation into, or
acquisition of property or stock by another corporation, the Company will use
its best efforts to cause a substitution or assumption of the Options.
11. Antidilution. The aggregate number of shares of Common Stock
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available for issuance under the Options, and the price per share, shall all be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock subsequent to the date of this Agreement resulting from a
recapitalization, reorganization, merger, consolidation or similar transaction
as provided in the Plan. Upon dissolution or liquidation of the Company, or
upon a merger or consolidation in which the Company is not the surviving
corporation (unless otherwise agreed in connection with the merger), the Options
shall terminate.
12. No Rights as a Stockholder. Optionee or a permitted transferee
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of the Options shall have no rights as a stockholder with respect to any shares
covered by the Options until the date as of which stock is issued following
exercise of such option. Except as provided in this Agreement, no adjustment
shall be made for dividends (ordinary or extraordinary, whether in cash,
securities or other property) or any other distributions for which the record
date is prior to the date as of which such stock is issued.
13. No Employment Rights. This Agreement is not an employment
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agreement or contract and does not grant any employment rights to Optionee.
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14. Other Provisions. The Company may, as a condition precedent to
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the exercise of the Options, require Optionee (including, in the event of
Optionee's death, his legal representatives, legatees or distributees) to enter
into such agreements or to make such representations as may be required to make
lawful the exercise of the Options and the ultimate disposition of the shares
acquired by such exercise.
15. Notices. Any notice which either of the parties hereto is
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required or permitted to give to the other must be in writing and may be given
by personal delivery or by mailing the same by registered or certified mail,
return receipt requested, to the party to which or to whom the notice is
directed, at the address each party designates in writing. Any notice mailed to
such address shall be effective when deposited in the mail, duly addressed and
postage prepaid, notwithstanding failure by the addressee thereof to receive the
mailed notice.
16. Governing Law. All transactions contemplated hereunder and all
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rights of the parties hereto shall be governed as to validity, construction,
enforcement and in all other respects by the laws and decisions of the State of
Utah.
17. Titles. The titles of the sections of this Agreement are
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inserted only as a matter of convenience and for reference, and in no way
define, limit or describe the scope of this Agreement or the intent of any
provisions hereof.
18. Amendment. This Agreement shall not be modified or amended
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except by written agreement signed by all of the parties hereto.
19. Attorney's Fees and Costs of Enforcement. If any party to this
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Agreement shall incur any costs resulting from enforcement of this Agreement,
the defaulting party shall be liable to the prevailing party for such costs.
Costs, as used herein, shall include costs of enforcement, interpretation, or
collection, including without limitation, reasonable attorney's fees, court
costs, collection charges, travel and other related or similar expenses.
20. Severability of Provisions. Any provision of this Agreement
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which is invalid, prohibited, or unenforceable in any jurisdiction, shall not
invalidate the remainder of the provision or the remaining provisions of the
Agreement.
21. Entire Agreement. Subject to the Plan, this Agreement contains
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all of the representations, declarations and statements from either party to the
other and expresses the entire understanding between the parties with respect to
the transactions provided for herein. All prior memoranda, letters, statements
and agreements concerning this subject matter, if any, are merged in and
replaced by this Agreement.
22. Pronouns, Number and Gender. Wherever necessary to implement the
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intent of the parties hereto, references herein to the singular shall be
interpreted as the plural, and
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vice versa, and the feminine, masculine or neuter gender shall be treated as one
of the other genders.
23. Binding Effect. This Agreement shall be binding upon and shall
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inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns.
24. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which may be deemed an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed the day and year first above written.
BRITESMILE, INC.
By: ____________________________________________
Its: ____________________________________________
OPTIONEE
_________________________________________________
_________________________
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