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) UNDER THE ACT. THE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY ANY REGULATORY AUTHORITY. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
STOCK PURCHASE AGREEMENT
BriteSmile, Inc. June 3, 0000
Xxxxxxx Xxxxxxxx Xxxxxx
000 Xxxxxxxx Xxxxx, Xxx 000
Xxxxxx, XX 00000
Gentlemen:
In connection with the offer and proposed issuance (the "Offering") of
shares of common stock, par value $.01 per share ("Common Stock") of BriteSmile,
Inc., a Utah corporation ("BriteSmile" or the "Company"), in reliance on
exemptions from the registration requirements of the U.S. Securities Act of
1933, as amended (the "Act"), each Purchaser identified on Schedule A hereto
(each, a "Purchaser") and the Company agree as follows:
1. Purchase of Securities. Subject to the terms and conditions of this
----------------------
Agreement, each Purchaser hereby agrees, severally and not jointly, to purchase
from the Company, and the Company agrees to issue and sell to each Purchaser,
the number of shares of Common Stock set forth opposite such Purchaser's name on
Schedule A. The agreement of any single Purchaser to purchase Shares is not
conditioned upon the agreement of any other Purchaser to purchase Shares. All
shares of Common Stock to be purchased hereunder shall be referred to in this
Agreement as the "Shares." The aggregate purchase price for the Shares shall be
as set forth opposite such Purchaser's name on Schedule A, the purchase price
per Share (the "Purchase Price") being Ninety-Five Percent (95%) of the lesser
of: (i) the average closing sale price per share of the Common Stock on the
American Stock Exchange ("AMEX") during the period of ten (10) trading days
immediately preceding the Closing; and (ii) the closing sale price per share of
the Common Stock on AMEX on the date of Closing. Each Purchaser shall pay the
Purchase Price for all Shares to be acquired by such Purchaser in full prior to
or at Closing, via wire
transfer to an account of the Company designated by the Company. Wire
instructions shall be provided prior to the Closing.
2. Registration Rights. The Shares shall be entitled to certain
-------------------
registration rights, as provided in that certain Registration Rights Agreement,
dated as of the date hereof (the "1999 Registration Rights Agreement"), between
the Company and the Purchasers named therein and by this reference made a part
hereof (such Registration Rights Agreement and this Agreement constitute the
"Transaction Documents").
3. Closing. Payment for the Shares by the Purchasers and delivery of the
-------
Shares by the Company shall be deemed to complete the transactions contemplated
by this Agreement (the "Closing"). The Closing shall occur concurrently with
the execution of this Agreement, or such later date as all of the conditions
precedent set forth in Section 11 shall have been satisfied or waived, or on
such later date as the parties may hereafter agree in writing (the "Closing
Date"). At the Closing, the Company shall deliver to each Purchaser a
certificate or certificates representing the Shares purchased by such Purchaser.
4. Representations and Warranties of Purchasers. To induce the Company's
--------------------------------------------
acceptance of this Agreement, each Purchaser hereby represents and warrants,
severally and not jointly, to the Company, its agents and attorneys, as follows:
4.1 Investor Status. It is [ ] is not [ ] (check one) an
---------------
"accredited investor" within the meaning of Section 501(a) of Regulation D
under the Act. [If such Purchaser is or is purchasing Shares on behalf of
a fund or other collective investment vehicle formed for the purpose of
passive investment by its equity owners (an "Investment Fund"), each
beneficial owner of shares or other equity interests in the Investment Fund
(a "Beneficial Owner") is an "accredited investor".]
4.2 Liquidity. It presently has sufficient liquid assets to pay the
---------
Purchase Price for all Shares to be purchased by it hereunder. It 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. It is capable of bearing the economic risk and
the burden of the investment contemplated by this Agreement including, but
not limited to, the possibility of the complete loss of the value of the
Shares and the limited transferability of the Shares, which may make the
liquidation of the Shares impossible in the near future.
4.3 Authorization. It has the requisite power and authority
-------------
(corporate, partnership or other) or, if such Purchaser is a natural
person, all requisite capacity, to enter into this Agreement, acquire the
Shares, and execute and deliver any documents or instruments in connection
with this Agreement. The execution and delivery of this
2
Agreement, and all other documents and instruments executed by such
Purchaser in connection with any of the transactions contemplated by this
Agreement, have been duly authorized by all required action of such
Purchaser and, if applicable, such Purchaser's owners or managers. The
person executing this Agreement and any other documents or instruments in
connection with this Agreement is duly authorized to do so on behalf of
such Purchaser.
4.4 Absence of Conflicts. Neither the execution and delivery of the
--------------------
Transaction Agreements or any other agreement or instrument to be executed
in connection therewith, nor the consummation of the transactions
contemplated thereby, and compliance with the requirements thereof, will
violate any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on it, or the provision of any indenture,
instrument or agreement to which it is a party or is subject, or by which
it 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 or to it 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
it is subject or to which any of its properties, operations or management
may be subject. If Purchaser is, or is purchasing Shares on behalf of, an
Investment Fund, Purchaser has made its own determination of the
suitability of an investment in Shares for the Investment Fund and an
investment in Shares satisfies all diversification, liquidity and other
requirements applicable to an investment by such Investment Fund.
4.5 Sole Party in Interest. It is the sole and true party in
----------------------
interest, and no other person or entity has or will have upon the issuance
of the Shares beneficial ownership (within the meaning of Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) in
the Shares or any portion thereof.
4.6 Investment Purpose. It represents that it is acquiring the
------------------
Shares for its own account, for investment purposes, and not for the
account or benefit of any other person or entity or for or with a view to
resale or distribution.
4.7 Knowledge and Experience. It is experienced in evaluating and
------------------------
making speculative investments, and has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits
and risks of its investment in the Company. It understands that an
investment in the Company is speculative and has concluded that its
proposed investment is appropriate in light of its overall investment
objectives and financial situation.
3
4.8 Disclosure; Access to Information. It has received and read and
---------------------------------
is familiar with and understands this Agreement, and that all documents,
records, books and other information pertaining to its investment in the
Company requested by it have been made available for inspection and copying
and that there are no additional materials or documents that have been
requested by it that have not been made available by or on behalf of the
Company. It further acknowledges that the Company is subject to the
periodic reporting requirements of the Exchange Act, and it has reviewed or
received copies of any such reports that have been requested by it.
Without limiting the generality of the foregoing, it acknowledges that it
has received and reviewed copies of the following documents and materials,
all of which are incorporated herein by reference:
(1) Articles of Amendment Adopting Revised Articles of
Incorporation of the Company, filed on August 11, 1998 with
the Utah Division of Corporations and Commercial Code;
(2) Bylaws of the Company, as amended;
(3) Annual Report on Form 10-KSB for the fiscal year ended March
31, 1998 (the "1998 10-KSB");
(4) Quarterly Reports on Form 10-QSB for the quarters ended June
30, September 30, and December 31, 1998 (the "1998 10-
QSBs");
(5) Current Reports on Form 8-K filed on May 6, 1998 and
December 22, 1998 (the "1998 8-Ks");
(6) The Company's Proxy Statement, dated July 17, 1998, for the
Company's 1998 Annual Meeting of Shareholders (the "1998
Annual Proxy Statement");
(7) The Business Presentation, as defined in Section 11.6;
(8) The Disclosure Schedules attached to this Agreement; and
(9) All of the documents identified on Schedule B hereto [ALL
DOCUMENTS DELIVERED IN RESPONSE TO DUE DILIGENCE
INVESTIGATION].
4.9 Exclusive Reliance on this Agreement. In making the decision to
------------------------------------
purchase the Shares, it has relied exclusively upon information included in
this Agreement or
4
incorporated herein by reference, and not on any other representations,
promises or information, whether written or verbal, by any person.
4.10 Advice of Counsel. It understands the terms and conditions of
-----------------
this Agreement, has investigated all issues to its satisfaction, has
consulted with such of its own legal counsel or other advisors as it 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. It further
acknowledges, understands and agrees that, in arranging for the preparation
of this Agreement and all other documents and materials related thereto,
the Company has not attempted to procure, and has not procured, legal
representation for it.
4.11 Accuracy of Representations and Information. All representations
-------------------------------------------
made by it in this Agreement, and all information provided by it to the
Company concerning it are correct and complete in all material respects as
of the date hereof. If there is any material change in such information
before the Closing Date and the issuance of the Shares, it immediately will
provide such information to the Company.
4.12 No Representations. None of the following has ever been
------------------
represented, guaranteed, or warranted to it by the Company or any of its
directors, officers, employees, agents, representatives or affiliates, or
any broker or any other person, expressly or by implication:
(1) The approximate or exact length of time that such Purchaser
will be required to remain as owner of the Shares; or
(2) The percentage of profit or amount of or type of
consideration, profit or loss (including tax write-offs or other tax
benefits) to be realized, if any, as a result of an investment in the
Shares.
4.13 Tax Matters. It has reviewed and understands the U.S. federal
-----------
and any applicable state income tax aspects of its purchase of the Shares,
and has received such advice in this regard as it 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.
4.14 No Brokers or Finders. No third person has in any way brought
---------------------
the parties together or been instrumental in the negotiation, execution, or
consummation of this Agreement or any instrument, document or agreement
related to this Agreement, other than any financial advisor to such
Purchaser whose fee or compensation in connection
5
with the matters covered by this Agreement is solely the obligation of such
Purchaser and has been previously disclosed to the Company.
4.15 Certain Risk Factors. It 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 pursuant to Section 4.8 of this Agreement.
4.16 Manner of Sale. At no time was such Purchaser presented with or
--------------
solicited by or through any leaflet, public promotional meeting, television
advertisement or any other form of general solicitation or advertising.
5. Representations and Warranties of the Company. The Company hereby
---------------------------------------------
represents and warrants to the Purchasers that, except as disclosed in the
Disclosure Schedules:
5.1 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 corporate 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.
5.2 Authorization. The execution and delivery of this Agreement and
-------------
the consummation of the transactions contemplated herein have been duly
authorized by all requisite action of the Company, including any necessary
approval by its Board of Directors or shareholders, and each of the
Transaction Documents and all instruments and agreements to be delivered in
connection therewith constitute its legally, 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 approval of the shareholders of the Company is not required
for the execution or performance of this Agreement under any applicable law
or regulation, the rules and policies of the American Stock Exchange (the
"AMEX") or the Company's Articles of Incorporation or Bylaws.
5.3 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, will (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
6
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 the Company to any third party, or (iii) require the approval
of any third party pursuant to any material contract, agreement,
instrument, relationship or legal obligation to which the Company is
subject or to which it or any of its properties, operations or management
may be subject.
5.4 Capitalization. The authorized capital stock of the Company
--------------
consists of 50,000,000 shares of Common Stock par value $.001 per share.
As of June 2, 1999, 17,148,354 shares of Common Stock were issued and
outstanding, no shares were held in the Company's treasury and
approximately 5,784,167 shares were reserved for issuance pursuant to any
outstanding options or other rights to acquire or receive Common Stock. 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.
5.5 SEC Reports and Financial Statements. The Company's 1998 Form
------------------------------------
10-KSB, 1998 10-QSBs, 1998 8-Ks and 1998 Annual Proxy Statement, copies of
which have been filed with or furnished to the Securities and Exchange
Commission (collectively, the "SEC Reports"), were 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 material fact necessary to make the
statements therein not misleading. The financial statements included in
the SEC Reports (the "Financial Statements") present fairly the financial
position of the Company at their respective 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 (subject, in the case of
unaudited financial statements, to the absence of notes and year-end
adjustments which, in the aggregate, will not be material in amount or
effect).
5.6 Business Presentation. The BriteSmile, Inc. Business
---------------------
Presentation and Financial Plans dated as of March, 1999 (the "Business
Presentation") is in all material respects an accurate presentation of the
current plans and projections of the management of the Company through the
fiscal year ending March 31, 2001. All financial assumptions and
projections contained in the Business Presentation are based on the
reasonable belief of management of the Company as of the date thereof.
5.7 Litigation, Etc. Except as disclosed in the SEC Reports, 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)
7
obligations or liabilities (other than obligations and liabilities arising
in the ordinary course of business subsequent to December 31, 1998),
whether accrued, contingent or otherwise, which, in either case (a) or (b),
involve a potential cost or liability to the Company which would,
individually or in the aggregate, materially and 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.
5.8 Brokers and Finders. Neither the Company nor any person acting
-------------------
on behalf of the Company has employed any broker, agent or finder, or
incurred any liability for any brokerage fees, agents' commissions or
finders' fees, in connection with the transactions contemplated herein.
5.9 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 U.S. Food and Drug Administration 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.
5.10 Articles of Incorporation and By-laws. The Company has delivered
-------------------------------------
to each Purchaser copies of its Articles of Incorporation 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. The Company's Articles of Incorporation have not been
amended since the date of the Amendments thereof delivered to the
Purchasers and no action has been taken for the purpose of effecting any
amendment thereto. The Company has delivered to the Purchaser copies of
its By-laws and all amendments thereto, which copies are complete and
correct. The Company is not in default under or in violation of any
provision of its Bylaws.
5.11 Product Liability. The Company has not received any notice,
-----------------
claim or assertion regarding an actual or alleged material liability of the
Company with respect to any of its products.
5.12 Manufacturing Relationships. The Company has not received any
---------------------------
notice, claim or assertion from or with respect to any OEM counterparty of
the Company
8
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.
5.13 Patents and Proprietary Rights. The Company has no reason to
------------------------------
believe that any of its patents or proprietary rights infringe upon or
otherwise violate the patents or proprietary rights of any other party.
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.
5.14 Unincorporated Documents or Materials. With respect to any
-------------------------------------
document or other materials received by the Purchaser from the Company or
its representatives which are not 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.
5.15 Information. To the best knowledge of the Company, the
-----------
information concerning the Company set forth in or incorporated by
reference in this Agreement, when considered together, 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 the light of the circumstances under which they were
made, not misleading.
6. Covenants.
---------
6.1 Restricted Shares. Each Purchaser understands and acknowledges
-----------------
that the Shares have not been registered under the Act, or any state
securities laws, and that they will be issued in reliance upon certain
exemptions from the registration requirements of those laws, and thus
cannot be resold unless they are registered under the Act or unless the
Company has first received an opinion of competent securities counsel
satisfactory to the Company that registration is not required for such
resale. Each Purchaser agrees that it will not resell any Shares unless
such resale transaction is in accordance with Regulation S and/or Rule 144
under the Act, pursuant to registration under the Act, or pursuant to an
available exemption from registration. With regard to the restrictions on
resales of the Shares, each 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 any attempts improperly to transfer any such securities; and (iii)
that a restrictive legend will be placed on certificates representing the
Shares, which legend will read substantially as follows:
9
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 RULE 144 OR, IF APPLICABLE, REGULATION S 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.
6.2 Nondisclosure. Except as required by applicable securities laws,
-------------
rules and regulations, prior to the Closing Date no press release or other
announcement concerning the proposed transactions will be issued (i) by the
Company without advance notice to and consultation with the Purchasers or
(ii) by any Purchaser without the consent of the Company. 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.
6.3 Confidentiality. Subject to the requirements of law, pending
---------------
consummation of the transactions herein contemplated, each Purchaser will
keep confidential, and will cause its representatives to keep confidential,
all information and documents obtained pursuant to Section 4.8 unless such
information (i) was already known to such Purchaser, (ii) becomes available
to Purchaser from other sources not known by Purchaser to be bound by a
confidentiality obligation, (iii) is independently acquired by such
Purchaser as a result of work carried out by any employee or representative
of such Purchaser to whom no disclsure of such information has been made,
(iv) is disclosed with the prior written approval of the Company or (v) is
or becomes readily ascertainable from published information or trade
sources.] Upon any termination of this Agreement, each Purchaser will
collect and deliver to the Company all
10
documents obtained by it or any of its representatives then in their
possession and any copies thereof.
7. Conditions to Closing. Closing of the transactions contemplated by
---------------------
this Agreement shall be contingent upon the satisfaction or waiver of the
following conditions precedent:
7.1 Approvals, Waivers, Etc. The Company shall have delivered to
------------------------
each Purchaser evidence of all approvals, including waivers and consents,
of its board of directors, government or third parties which may be
required for the sale of the Shares, in full force and effect as of the
Closing Date.
7.2 Absence of Litigation and Government Orders or Proceedings. No
----------------------------------------------------------
litigation nor any order or proceeding of any governmental authority or
self-regulatory organization shall have been entered or threatened or shall
be pending challenging the purchase of the Shares contemplated by the
Transaction Agreements or which could have a material adverse effect on the
Company.
7.3 No Bankruptcy. The Company shall not have filed for bankruptcy
-------------
protection, the appointment of a trustee or receiver, assignment for the
benefit of creditors, nor have taken any other action designed to protect
the Company, its property or assets from the rights of creditors; and no
other person shall have made any such filing or taken any such action in
respect of the Company.
7.4 Compliance with Covenants. The Company and each Purchaser shall
-------------------------
have performed or satisfied in all material respects all of its respective
obligations and agreements under the Transaction Agreements.
7.5 Representations and Warranties. The representations and
------------------------------
warranties of the Company and each Purchaser set forth in this Agreement
shall be true and correct in all material respects (disregarding, for
purposes of such determination of materiality, all qualifications in such
representations and warranties regarding "material") as of the date of this
Agreement and as of the Closing Date as though made on and as of the
Closing Date (except that representations and warranties that by their
terms speak as of the date of this Agreement or some other date shall be
true and correct only as of such date).
7.6 AMEX Additional Listing Application. The Company shall have made
-----------------------------------
all appropriate filings under the rules of the American Stock Exchange and
shall have received notification from AMEX that the Shares have been
approved for listing, subject to notice of issuance.
11
7.7 Opinions. The Company shall have delivered to the Purchaser an
--------
opinion of counsel to the Company that (i) the Company has been duly
incorporated and is in good standing in the jurisdiction of its
incorporation, (ii) the Shares, when paid for and issued, will be validly
issued, fully paid and non-assessable, and (iii) the Transaction Document
has been duly authorized by all necessary corporate action and constitutes
a valid and legally binding obligation of the Company enforceable in
accordance with its terms, subject to customary qualifications.
8. Indemnification.
---------------
8.1 Indemnification by the Company. The Company agrees to indemnify
------------------------------
each Purchaser, its officers, employees and agents, and any persons
controlling such Purchaser, and hold them harmless from and against any and
all liability, damage, cost or expense, including attorney's fees but
excluding any diminution in the value of such Purchaser's Shares incurred
on account or arising out of any inaccuracy or omission in or breach of the
declarations, covenants, agreements, representations, and warranties by the
Company set forth or incorporated by reference herein. The Company agrees
to indemnify each Purchaser, its directors, officers and controlling
persons, against any claim by any third person for any commission,
brokerage fee, finders fee, or other payment with respect to this Agreement
or the transactions contemplated hereby based upon any alleged agreement or
understanding between such party and such third person, whether expressed
or implied, arising from the actions of such party. The covenants set forth
in the preceding sentence shall survive the Closing Date and any
termination of this Agreement.
8.2 Indemnification by Purchasers. Each Purchaser agrees to
-----------------------------
indemnify the Company against any claim by any third person for any
commission, brokerage fee, finders fee, or other payment with respect to
this Agreement or the transactions contemplated hereby based upon any
alleged agreement or understanding between such party and such third
person, whether expressed or implied, arising from the actions of such
party. The covenant set forth in this Section shall survive the Closing
Date and any termination of this Agreement.
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
and liabilities it shall have hereunder or under applicable laws, shall pay
reasonable attorneys' fees and costs incurred by the non-defaulting party.
12
9.2 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York applicable to
contracts wholly to be performed in such state.
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. This Agreement, the 1999 Registration Rights
----------------
Agreement, the Disclosure Schedule and the other attachments referred to
herein (all of which are incorporated in this Agreement by reference)
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. Each party shall be responsible for and shall pay its
--------
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 AMEX. Notwithstanding the foregoing, the Company
shall pay any stock issuance or transfer taxes payable in connection with
the issue and sale of the Shares to Purchaser, and expenses which the
Company is obligated to pay under the Registration Rights Agreement with
respect to the Shares.
9.6 Termination. This Agreement may be terminated at any time prior
-----------
to the Closing with respect to any Purchaser by mutual agreement of the
Company and that Purchaser set forth in writing. This Agreement may also
be terminated by the Company or by any Purchaser (solely with respect to
such Purchaser's representations, warranties and other agreements
hereunder) by written notice to the other parties hereto, in the event that
the Closing shall not have occurred on or prior to June 30, 1999. The
agreement set forth in Section 9.5 and each other provision hereof
expressly stated to survive the termination, shall survive the termination
of this Agreement.
9.7 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.
9.8 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
13
overnight courier service, (i) if to any Purchaser, to its address
indicated on Schedule A or (ii) if to the Company, to its address indicated
below or, in any case, at such other address as the parties may designate
in writing:
BriteSmile, Inc.
Attn. Xxxxxxx X. Xxxxxx, CFO
Airport Business Center
000 Xxxxxxxx Xxxxx, Xxx 000
Xxxxxx, XX 00000
Fax: (000) 000-0000
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With copies to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxx, Esq.
DURHAM, XXXXX & XXXXXXX, P.C.
Key Bank Tower, Suite 800
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
All notices and communications shall be effective as follows: When mailed,
on the third business day after the day of 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.
9.9 Severability. If any one or more of the provisions of this
------------
Agreement is 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.
9.10 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 any Purchaser without the prior written consent of the
Company.
9.11 Survival of Representations, Warranties and Covenants Closing.
-------------------------------------------------------------
All warranties, representations, indemnities and agreements made in this
Agreement by a party hereto shall survive the date of this Agreement, the
Closing Date, the consummation of the transactions contemplated by this
Agreement and the issuance by the Company of the Shares.
IN WITNESS WHEREOF, the parties named below have signed this Agreement as
of the date first above written.
[INDIVIDUAL PURCHASER]
_____________________________
Printed Name
_____________________________
Signature
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DATE: June 3, 1999
[ENTITY PURCHASER]
[NAME OF ENTITY]
-------------------------------------
BY:_________________________
TITLE: _____________________
DATE: June 3, 1999
ACCEPTED AND AGREED:
BRITESMILE, INC., the "Company"
BY:______________________
TITLE:___________________
DATE:__________ ___, 1999
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Schedule A
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Purchaser and Address Number of Shares Aggregate Purchase Price
----------------------- ---------------- ------------------------
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