THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF ANY STATE, AND WILL BE OFFERED AND SOLD BY THE COMPANY IN
RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF FEDERAL AND STATE
LAW BY VIRTUE OF THE COMPANY'S INTENDED COMPLIANCE WITH THE PROVISIONS OF
SECTION 4(2) AND/OR REGULATION S PROMULGATED UNDER THE ACT. THE SECURITIES HAVE
NOT BEEN APPROVED OR DISAPPROVED BY ANY REGULATORY AUTHORITY. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
NOTE PURCHASE AGREEMENT
This Note Purchase Agreement ("Agreement") is made and entered into as
of the 20th day of November, 2002 by and between BriteSmile, Inc., a Utah
corporation ("BriteSmile" or the "Company") and LCO Investments Limited
("Purchaser").
A. Pursuant to that certain Guarantee of Fiscal 2002 Shortfall
agreement between the Company and Purchaser effective March 4,
2002, the Company desires to borrow Two Million Five Hundred
Thousand Dollars ($2,500,000) from Purchaser and Purchaser
desires to lend $2,500,000 to the Company; and
B. In consideration of the loan amount, the Company has
authorized the issuance to Purchaser of a Convertible
Promissory Note in the original principal amount of $2,500,000
(the "Note").
NOW THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, and other valuable consideration, the receipt of
which is hereby acknowledged, the parties covenant and agree as follows:
1. Loan and Note Purchase. The Company agrees to borrow Two Million
Five Hundred Thousand Dollars ($2,500,000) from Purchaser and Purchaser agrees
to lend to the Company $2,500,000 (the "Loan") pursuant to the terms and
conditions of this Agreement and the Note, a copy of which is attached to this
Agreement as Exhibit "A" and by this reference incorporated herein. Purchaser
agrees to purchase the Note and tenders herewith the principal amount of the
Loan, receipt of which by the Company is hereby acknowledged. Principal and
interest owing under the Note is convertible into shares of Common Stock, par
value $.001 per share, of the Company ("Common Stock"), at a conversion price
equal to $0.40 per share, the closing sale price of Common Stock as quoted on
NASDAQ on the effective date of this Agreement. The total purchase price (the
"Purchase Price") for the Note shall be Two Million Five Hundred Thousand
Dollars ($2,500,000). The Purchaser shall pay the Purchase Price in full at
Closing, as hereinafter defined, via wire transfer to an account of the Company
identified by the Purchaser and under the control of persons designated by or
1
acceptable to the Purchaser on or before the Closing Date. Wire instructions
shall be provided prior to the Closing. The Note, together with the shares of
Common Stock into which the Note may be converted (the "Shares"), shall be
referred to collectively in this Agreement as the "Securities."
2. Registration Rights and Note Conversion. The Shares shall be subject
to certain registration rights, as provided in that certain Registration Rights
Agreement dated as of March 4, 2002 (the "Registration Rights Agreement"),
between Purchaser 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 and the Note
constitute the "Transaction Documents"). In addition, BriteSmile shall make
appropriate filings under the rules of Nasdaq in order that the Shares will be
authorized for listing on Nasdaq, subject to notice of issuance upon conversion.
Conversion shall further be conditioned upon the Company having sufficient
authorized capital stock to effect the conversion, and upon compliance with all
applicable regulatory and securities law requirements.
3. Closing. Payment of the Purchase Price by the Purchaser and delivery
of the Note and Registration Rights Agreement by BriteSmile shall be deemed to
be the completion of the transactions contemplated by this Agreement
("Closing"). Closing shall occur concurrently with the execution of this
Agreement, effective as of the date hereof, or on such later date as the parties
may hereafter agree (the "Closing Date").
4. Use and Disposition of Proceeds. The Loan proceeds will be
used in the manner directed by the Company's Board of Directors, or as shall be
determined or directed pursuant to authority delegated by the Board.
5. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to the Company and its agents and attorneys as follows:
5.1 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.
5.2 Liquidity. Purchaser presently has sufficient liquid
assets to pay the Purchase Price. Purchaser has adequate means of
providing for its current needs and contingencies and has no need for
liquidity in its investment in the Company or for a source of income
from the Company. Purchaser is capable of bearing the economic risk and
the burden of the investment contemplated by this Agreement, including,
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.
2
5.3. Organization, Standing, Authorization. Purchaser is duly
organized, validly existing, and in good standing under the laws of
Guernsey, Channel Islands, and has the requisite power and authority to
enter into this Agreement, acquire the Note, and execute and deliver
any documents or instruments in connection with this Agreement. The
execution and delivery of this Agreement, and all other documents and
instruments executed by Purchaser in connection with any of the
transactions contemplated by this Agreement, have been duly authorized
by all required action of Purchaser. The person executing, on
Purchaser's behalf, this Agreement and any other documents or
instruments executed by Purchaser in connection with this Agreement is
duly authorized to do so.
5.4. Absence of Conflicts. Purchaser represents and warrants
that the execution and delivery of this Agreement and any other
document or instrument executed in connection with this Agreement, and
the consummation of the transactions contemplated thereby, and
compliance with the requirements thereof, will not violate any law,
rule, regulation, order, writ, judgment, injunction, decree or award
binding on Purchaser, or the provision of any indenture, instrument or
agreement to which Purchaser is a party or is subject, or by which
Purchaser or any of its properties is bound, or conflict with or
constitute a material default thereunder, or result in the creation or
imposition of any lien pursuant to the terms of any such indenture,
instrument or agreement, or constitute a breach of any fiduciary duty
owed by such Purchaser to any third party, or require the approval of
any third-party pursuant to any material contract, agreement,
instrument, relationship or legal obligation to which Purchaser is
subject or to which any of its properties, operations or management may
be subject.
5.5 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.
5.6. 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.
5.7 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 the Company in
particular, that Purchaser is capable of evaluating the merits and
risks of Purchaser's investment in the Company.
3
5.8 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 the Company requested by Purchaser have been
made available for inspection and copying and that there are no
additional materials or documents that have been requested by Purchaser
that have not been made available by the Company. Purchaser further
acknowledges that Xxxxxxx Xxxxxx, Xxxx Xxxxxx, and Xxxx Xxxx are
directors and/or executive officers of the Company. Purchaser
acknowledges that the Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and Purchaser has reviewed or received copies of any
and all such reports that have been filed by the Company with the SEC
to date.
5.9 Exclusive Reliance on this Agreement. In making the
decision to purchase the Note, Purchaser has relied exclusively upon
information included in this Agreement or incorporated herein by
reference, and not on any other representations, promises or
information, whether written or verbal, by any person.
5.10 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 the Company, for an explanation of
the terms or conditions of this Agreement or any document or instrument
related to the transactions contemplated thereby.
5.11 No Representations. None of the following have ever
been represented, guaranteed, or warranted to Purchaser by the Company
or any of its employees, agents, representatives or affiliates, or any
broker or any other person, expressly or by implication:
(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.
5.12 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
the Company for such advice.
4
6. Certain Risk Factors. Purchaser has been informed about and
fully understands that there are risks associated with an investment in the
Company, including those disclosed in documents incorporated herein by
reference.
7. 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.
8. Restricted Securities. Purchaser understands and acknowledges that
the Securities have not been registered under the Act, or any state securities
laws, and that they will be issued in reliance upon certain exemptions from the
registration requirements of those laws, and thus cannot be resold unless they
are registered under the Act or unless the Company has first received an opinion
of competent securities counsel that registration is not required for such
resale. Purchaser agrees that it will not resell any Securities unless such
resale transaction is in accordance with Regulation S and/or Rule 144 under the
Act, pursuant to registration under the Act, or pursuant to an available
exemption from registration. With regard to the restrictions on resales of the
Securities or any security underlying or into which the Securities are or may be
convertible, Purchaser is aware (i) of the limitations and applicability of
Securities and Exchange Commission Rule 144, (ii) that the Company will issue
stop transfer orders to its stock transfer agent in the event of attempts to
improperly transfer any such securities; and (iii) that a restrictive legend
will be placed on certificates representing the Securities and any security
underlying or into which any of the Securities are or will be convertible, which
legend will read substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED
PURSUANT TO A CLAIM OF EXEMPTION FROM THE REGISTRATION OR QUALIFICATION
PROVISIONS OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
STATE SECURITIES LAWS AND THEREFORE HAVE NOT BEEN REGISTERED UNDER THE
ACT OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT
BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT
COMPLIANCE WITH THE PROVISIONS OF REGULATION S OR, IF APPLICABLE, RULE
144 UNDER THE ACT, COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION
PROVISIONS OF THE ACT OR APPLICABLE STATE LAWS, OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS. THE COMPANY
WILL INSTRUCT ITS STOCK TRANSFER AGENT NOT TO RECOGNIZE ANY SALE OF
THESE SECURITIES UNLESS SUCH SALE IS MADE PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR THE COMPANY HAS FIRST RECEIVED
AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS SECURITIES
COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
5
9. Representations and Warranties of the Company. The Company
hereby represents and warrants to Purchaser as follows:
9.1 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.
9.2 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 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 the Company shall
secure a waiver from Nasdaq of any applicable Nasdaq approval
requirements.
9.3 Absence of Conflicts. Neither the execution and delivery
of the Transaction Documents or any other agreement or instrument to be
delivered to the Purchaser in connection therewith, nor the
consummation of the transactions contemplated thereby, by the Company,
shall (i) conflict with or result in a breach of or constitute a
violation or default under (A) any provision of the Articles of
Incorporation or By-laws, each as amended to date, of the Company, or
(B) the provision of any indenture, instrument or agreement to which
the Company is a party or by which it or any of its properties is
bound, or (C) any order, writ, judgment, award, injunction, decree,
law, statute, rule or regulation, license or permit applicable to the
Company; (ii) result in the creation or imposition of any lien pursuant
to the terms of any such indenture, instrument or agreement, or
constitute a breach of any fiduciary duty owned by the Company to any
third party, or (iii) except as may be required pursuant to the January
2000 Stock Purchase Agreement between the Company and the Pequot
entities, or pursuant to the Securities Purchase Agreement, as amended
August 3, 2000, between the Company and the Note purchasers identified
therein, require the approval of any third party pursuant to any
material contract, agreement, instrument, relationship or legal
obligation to which the Company is subject or to which it or any of its
properties, operations or management may be subject.
9.4 Capitalization. The authorized capital stock of the
Company consists of 50,000,000 shares of Common Stock par value $.001
per share. As of October 8, 2002, 36,426,961 shares of Common Stock
were issued and outstanding, and no shares were held in the Company's
treasury. All of the outstanding shares of Common Stock are, and the
6
Shares will be, when paid for and issued, duly authorized, validly
issued, fully paid and non-assessable and free of any preemptive
rights.
9.5 Financial Statements. The Company's annual report on Form
10-K for the fiscal year ended December 29, 2001 (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 29, 2001 (the
"8-Ks"), and the Company's 2002 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.
9.6 Litigation, Etc. Except as disclosed in the 10-K's, the
10-Q's, and the 8-K's, there are no (a) suits, actions or legal,
administrative, arbitration or other proceedings or governmental
investigations or other controversies pending, or to the knowledge of
the Company threatened, or as to which the Company has received any
notice, claim or assertion, or (b) obligations or liabilities (other
than obligations and liabilities arising in the ordinary course of
business), 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.
9.7 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.
9.8 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
9.9 Product Liability. Except as disclosed to Purchaser
prior to Closing, the Company has not received any notice, claim or
assertion regarding an actual or alleged liability of the Company with
respect to any of its products.
9.10 OEM Relationships. Except as disclosed to Purchaser prior
to Closing, the Company has not received any notice, claim or assertion
from or with respect to any OEM 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.
9.11 Patents and Proprietary Rights. Except as disclosed to
Purchaser prior to Closing, the Company has no reason to believe that
any of its patents or proprietary rights infringes upon or otherwise
violates the patents or proprietary rights of any other party. Except
as disclosed to Purchaser prior to Closing, the Company has not
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.
9.12 Unincorporated Documents or Materials. With respect to
any document or other materials received by the Purchaser from the
Company or its representatives which are incorporated herein by
reference, (i) the Company has no reason to believe any of such
documents and materials or any projections contained therein contain
errors or misstatements or do not adequately describe the transactions
contemplated by this Agreement or the status of the development of the
Company's technology and products, and (ii) such documents, materials
and projections were prepared by the Company and its management in good
faith.
9.13 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.
9.14 Board Determination. The Board of Directors of the
Company has made its own determination of the advisability of the
Company's entering into this Agreement and has considered all financial
and regulatory effects on the Company of the consummation of the
transactions contemplated hereby as they deemed necessary or advisable.
The Company has not relied on any representations or warranties of
Purchaser in connection with such determination other than the
representations and warranties of Purchaser contained herein.
10. 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
8
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 Purchaser shall have the opportunity
to review such disclosure prior to publication.
11. General Provisions.
------------------
11.1 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.
11.2 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.
11.3 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.
11.4 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.
11.5 Expenses. The parties shall be responsible for and shall
pay their own costs and expenses, including without limitation
attorneys' fees and accountants' fees and expenses, in connection with
the conduct of the due diligence inquiry, negotiation, execution and
delivery of this Agreement and the instruments, documents and
agreements executed in connection with this Agreement. The Company
shall bear all expenses in connection with the listing of the Shares on
Nasdaq. Notwithstanding the foregoing, the Company shall pay any stock
transfer taxes payable in connection with the issue and sale of the
Shares to the Purchaser, and expenses which the Company is obligated to
pay under the Registration Rights Agreement with respect to the Shares.
11.6 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
11.7 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:
(1) If to Purchaser:
LCO Investments Limited
0 Xxx Xxxxxx
Xx. Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx Xxxxxxx
With copies to:
Xxxxxxx Xxxx
Cap Advisers Limited
00 Xxxxxxxxxxx Xxxxx
Xxxxxx 0, Xxxxxxx
(Tel. 000-000-0-000-0000)
(Fax 000-000-0-000-0000)
Craigh Xxxxxxx
Xxxxxxxx & O'Neil, LLP
000 Xxxxx 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
Fax: (000) 000-0000
10
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.
11.8 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.
11.9 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors, but
shall not be assignable by Purchaser without the prior written consent
of the Company; provided that Purchaser may assign its rights hereunder
and in the Registration Rights Agreement relating to the Shares to one
or more affiliates of Purchaser or to one or more charitable
foundations in circumstances where such assignees assume all
obligations of Purchaser thereunder and any such assignment does not
violate the Securities Act of 1933, and provided further that Purchaser
may sell or assign any or all of the Shares in accordance with this
Agreement and such Registration Rights Agreement.
11.10 Survival of Representations, Warranties and Covenants
Closing. All warranties, representations, indemnities and agreements
made in this Agreement by a party hereto shall survive the date of this
Agreement, the Closing Date, the consummation of the transactions
contemplated by this Agreement, and the issuance by the Company of the
Securities.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date set forth below.
LCO INVESTMENTS LIMITED
BY:
---------------------------------------------------
TITLE:
---------------------------
DATE: November 20, 2002
11
ACCEPTED AND AGREED:
BRITESMILE, INC.
BY:
------------------------------
TITLE:
----------------------------
DATE: November 20, 2002
12
