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.
CAP LINE CONVERSION AGREEMENT
This CAP Line Conversion Agreement ("Agreement") is made and entered
into as of the 20th day of November, 2003 by and between BriteSmile, Inc., a
Utah corporation ("BriteSmile" or the "Company"), and LCO Investments Limited, a
Guernsey corporation ("LCO").
A. On December 13, 2001, BriteSmile International Limited, an
Irish Company ("BSML International"), and CAP Advisers Limited
("CAP"), an English company, entered into a Credit and
Security Agreement, as amended by a March 8, 2002 Supplement,
a July 22, 2002 Supplement, and a January 9, 2003 Supplement
(the "Credit Agreement").
B. Effective as of the date hereof, CAP has assigned all of its
rights and obligations under the Credit Agreement to LCO, and
LCO has assumed all such rights and obligations.
C. Effective as of the date hereof, BSML International has
assigned all of its rights and obligations under the Credit
Agreement to BriteSmile, and BriteSmile has assumed all such
rights and obligations.
D. Accordingly, as of the date hereof, the Company owes LCO
accrued principal and interest under the Credit Agreement in
the amount of $6,500,000 (the "Obligation");
E. The Company wishes to discharge the Obligation and to cancel
and terminate the Credit Agreement by issuing to LCO shares of
the Company's common stock par value $.001 per share ("Common
Stock"), and LCO wishes to accept such shares of Common Stock
in satisfaction of the Obligation; and
F. In consideration of LCO's agreement to accept such shares in
satisfaction of the Obligation, the Company has authorized the
issuance to LCO of the number of shares of Common Stock
referred to below;
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. Satisfaction of Obligation; Termination of Credit Agreement; and Stock
Purchase. The Company and LCO agree that the amount of the Obligation
that remains unpaid under the Credit Agreement as of the date hereof is
$6,500,000. The Company and LCO agree that the Obligation shall be
deemed discharged and paid in full by the issuance by the Company to
LCO of such number of shares of Common Stock (the "Shares") as have a
value, based on the higher of (i) $31.75 per share or (ii) the closing
sale price of Common Stock as quoted on NASDAQ on the effective date of
this Agreement, equal to $6,500,000. Upon receipt of the Shares, the
Obligation shall be deemed satisfied in full, and the Credit Agreement
shall be cancelled and terminated and shall be of no further force or
effect. Notwithstanding anything to the contrary in this Agreement, the
shares of Common Stock that may be issued under this Section 1,
together with the shares of Common Stock that may be issued under that
certain Receivable Conversion Agreement between the Company and Excimer
Vision Leasing L.P., a Delaware limited partnership, dated of even date
herewith, shall under no circumstances (A) in the aggregate equal or
exceed in number 10% of the number of shares of Common Stock
outstanding immediately before such issuances or (B) represent 10% or
more of the voting power of the shares of BriteSmile Common Stock
outstanding immediately before such issuances. If the number of Shares
otherwise issuable to LCO pursuant to this Section 1 is limited by the
foregoing provision, then (A) the portion of the Obligation in excess
of the value of the Shares actually issued (based on the higher of (i)
$31.75 per share or (ii) the closing sale price of Common Stock on
Nasdaq on the effective date of this Agreement) shall remain due and
payable in cash by BriteSmile pursuant to this Agreement, and (B) the
portion of the Obligation deemed cancelled by the issuance of such
Shares shall be first applied to any interest included therein.
2. Registration Rights. The Shares shall be subject to certain
registration rights, as provided in that certain Registration Rights
Agreement dated as of May 9, 2003 (the "Registration Rights
Agreement"), between LCO 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 constitute the "Transaction
Documents").
3. Closing. The cancellation by LCO of the Company's Obligation the
issuance of the Shares and delivery of the 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. Representations and Warranties of LCO. LCO hereby represents and
warrants to the Company and its agents and attorneys as follows:
4.1. Investor Status. LCO 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.
4.2. Liquidity. LCO 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. LCO 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.
2
4.3. Organization, Standing, Authorization. LCO is duly organized, validly
existing, and in good standing under the laws of Guernsey, and has the
requisite power and authority 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
Agreement, and all other documents and instruments executed by LCO in
connection with any of the transactions contemplated by this Agreement,
have been duly authorized by all required action of LCO. The person
executing, on LCO's behalf, this Agreement and any other documents or
instruments executed by LCO in connection with this Agreement is duly
authorized to do so.
4.4. Absence of Conflicts. LCO 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 LCO, or
the provision of any indenture, instrument or agreement to which LCO
is a party or is subject, or by which LCO 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 LCO 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 LCO is subject or to which any of its properties, operations or
management may be subject.
4.5. Sole Party in Interest. LCO 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 Shares beneficial ownership interest in the Shares
or any portion thereof, whether direct or indirect (excluding any
contractual right to payments based on the value of such Shares), other
than the equity holders or beneficiaries of LCO or as set forth on
LCO's or such equity holders' or beneficiaries' Reports on Schedule 13D
or Forms 4 with respect to the Shares.
4.6. Investment Purpose. LCO represents that it is acquiring the Shares 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.
4.7. Knowledge and Experience. LCO is experienced in evaluating and making
speculative investments, and has the capacity to protect LCO's
interests in connection with the acquisition of the Shares. LCO has
such knowledge and experience in financial and business matters in
general, and investments in the Company in particular, that LCO is
capable of evaluating the merits and risks of LCO's investment in the
Company.
4.8. Disclosure, Access to Information. LCO confirms that it has received,
read, and understands this Agreement, and that all documents, records,
books and other information pertaining to LCO's investment in the
Company requested by LCO have been made available for inspection and
copying and that there are no additional materials or documents that
have been requested by LCO that have not been made available by the
3
Company. LCO further acknowledges that Xxxxxxx Xxxxxx is a director and
executive officer of the Company. LCO acknowledges that the Company is
subject to the periodic reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and LCO has
reviewed or received copies of any and all such reports that have been
filed by the Company with the SEC to date.
4.9. Exclusive Reliance on this Agreement. In making the decision to
purchase the Shares, LCO 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.
4.10. Advice of Counsel. LCO understands the terms and conditions of this
Agreement, has investigated all issues to LCO's satisfaction, has
consulted with such of LCO's own legal counsel or other advisors as LCO
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.
4.11. No Representations. None of the following has ever been represented,
guaranteed, or warranted to LCO 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 LCO will be required to
remain as owner of the Shares; 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 Shares.
4.12. Federal Tax Matters. LCO has reviewed and understands the federal
income tax aspects of its purchase of the Shares, and has received such
advice in this regard as LCO 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.
5. Certain Risk Factors. LCO 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.
6. Manner of Sale. At no time was LCO presented with or solicited by or
through any leaflet, public promotional meeting, television
advertisement or any other form of general solicitation or advertising.
7. Restricted Securities. LCO 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 that
registration is not required for such resale. LCO agrees that it will
4
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,
LCO 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 Shares and any
security underlying or into which any of the Shares 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.
8. Representations and Warranties of the Company. The Company hereby
represents and warrants to LCO as follows:
8.1. 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.
8.2. 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
5
timely comply with any notice filing, approval or ratification
requirements under the rules and regulations of Nasdaq relating to the
issuance of the Shares, or the Company shall secure a waiver from
Nasdaq of any applicable Nasdaq filing or approval requirements.
Without limiting the generality of the foregoing, the Company shall
file the Notification Form: Change in the Number of Shares
Outstanding, no later than 10 days after the Closing Date, as required
by Nasdaq Marketplace Rule 4310(17)(24).
8.3. Due Issuance. When issued and delivered pursuant to the terms of this
Agreement, the Shares will be duly authorized, validly issued, fully
paid and nonassessable, free of all preemptive rights and shall be
Registrable Securities as such term is defined in the Registration
Rights Agreement.
8.4. Absence of Conflicts. Neither the execution and delivery of the
Transaction Documents or any other agreement or instrument to be
delivered to LCO 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)
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.
8.5. Capitalization. The authorized capital stock of the Company consists of
50,000,000 shares of Common Stock par value $.001 per share. As of the
Closing Date, 3,324,309 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, when paid for and issued,
duly authorized, validly issued, fully paid and non-assessable and free
of any preemptive rights.
8.6. Financial Statements. The Company's annual report on Form 10-K for the
fiscal year ended December 28, 2002 (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 28, 2002 (the "8-Ks"),
and the Company's 2003 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.
6
8.7. 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.
8.8. 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.
8.9. 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.
8.10. Product Liability. Except as disclosed to LCO 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.
8.11. OEM Relationships. Except as disclosed to LCO 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.
8.12. Patents and Proprietary Rights. Except as disclosed to LCO 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 LCO
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.
8.13. Unincorporated Documents or Materials. With respect to any document or
other materials received by LCO 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
7
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.
8.14. 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.
8.15. 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 LCO in connection with
such determination other than the representations and warranties of LCO
contained herein.
9. 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 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 LCO shall have the
opportunity to review such disclosure prior to publication.
10. General Provisions.
10.1. 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.
10.2. 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.
10.3. 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.
10.4. 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
8
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.
10.5. 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 LCO, and
expenses which the Company is obligated to pay under the Registration
Rights Agreement with respect to the Shares.
10.6. 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.
10.7. 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:
If to LCO:
LCO Investments Limited
Kensington Xxxxxxxx
00-00 Xxxxxxxxxx Xxxxx
Xx. Xxxxxx
Xxxxxx, 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)
Craigh Xxxxxxx
Xxxxxxx XxXxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
(Tel. 000-000-0000)
(Fax. 000-000-0000)
(1) 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
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.
10.8. 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.
10.9. 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 LCO without the prior written consent of the Company;
provided that LCO may assign its rights hereunder and in the
Registration Rights Agreement relating to the Shares to one or more
affiliates of LCO or to one or more charitable foundations in
circumstances where such assignees assume all obligations of LCO
thereunder and any such assignment does not violate the Securities Act
of 1933, and provided further that LCO may sell or assign any or all of
the Shares in accordance with this Agreement and such Registration
Rights Agreement.
10.10. 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 Shares.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date set forth below.
LCO INVESTMENTS LIMITED
By: /s/ Xxxxx Xxxxxxx
------------------------------------------------
Title: Authorized Officer
--------------------------------------------
Date: November 20, 2003
ACCEPTED AND AGREED:
BRITESMILE, INC.
By: /s/ Xxxx Xxxx
------------------------------------------------
Title: Chief Financial Officer
-----------------------------------------------
Date: November 20, 2003
