THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT MAY NOT
BE TRANSFERRED IN THE ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY COMPARABLE STATE LAW, OR AN EXEMPTION THEREFROM UNDER
SUCH ACT. THIS WARRANT AND SUCH SHARES MAY BE TRANSFERRED ONLY IN COMPLIANCE
WITH THE CONDITIONS SPECIFIED IN THIS WARRANT
BriteSmile, Inc.
COMMON STOCK PURCHASE WARRANT
Warrant Holder: ______________________
Date of Grant: _______________________
Number of Covered Shares: ____________
Exercise Price Per Share: ____________
Term: _______________________________
Effective as of _______________, BriteSmile, Inc., a Utah
corporation (the "Company"), for value received, and pursuant to that certain
___________________ dated ___________________ from _______________ to
__________________ ("Consultant"), hereby certifies that Consultant is entitled
to purchase from the Company, at such times and in such amounts as are permitted
herein, ___________ (____________) duly authorized shares of the Common Stock,
par value $.001 per share, of the Company (the "Warrant Stock") at a purchase
price per share of $_______, all subject to the terms and conditions set forth
below.
1. Exercise of Warrant.
1.1. Vesting and Exercise. Consultant's right to exercise the
Warrants granted hereunder shall be subject to the following vesting schedule:
(a) Warrants to purchase _________shares of the total
number granted shall be exercisable on _____________, and shall expire and
terminate on ______________.
(b) Warrants to purchase the remaining ____________ shares of
the total number granted shall vest and become exercisable on ________________,
provided that Consultant's engagement by the Company has not terminated prior to
that date, and shall expire and terminate on _____________________.
1.2. Manner of Exercise. Consultant may exercise this Warrant, in
whole or in part, during normal business hours on any business day by
surrendering this Warrant to the Company at the Company's principal office,
accompanied by an executed subscription agreement in substantially the form
annexed hereto as Exhibit "A", as such form may be modified in the discretion of
the Company to comply with any applicable federal or state securities laws, and
by payment, in cash or by certified or official bank check payable to the order
of the Company, or by any combination of such methods, in the amount obtained by
multiplying (a) the number of shares of Warrant Stock designated in such
subscription by (b) $________, whereupon Consultant shall be entitled to receive
the number of duly authorized, validly issued, fully paid and nonassessable
shares of Warrant Stock as is indicated on the subscription. Except as otherwise
provided by the Company before the Warrant is exercised, (i) all or a portion of
the exercise price may be paid by Consultant by delivery of shares of Common
Stock owned by Consultant for at least 6 months and acceptable to the Company,
having an aggregate Fair Market Value (as of the date of exercise) that is equal
to the amount of cash that would otherwise be required; or (ii) Consultant may
pay the exercise price by authorizing a third party to sell shares of Stock (or
a sufficient portion of the shares) acquired upon exercise of the Warrant and
remit to the Company a sufficient portion of the sale proceeds to pay the entire
exercise price and any tax withholding resulting from such exercise.
1.3. When Exercise Effective. Each exercise of this Warrant shall be
deemed to have been effected immediately prior to the close of business on the
business day on which this Warrant shall have been surrendered to the Company as
provided in Section 1.2, and at such time the person or persons in whose name or
names any certificate or certificates for shares of Warrant Stock shall be
issued upon such exercise shall be deemed for all corporate purposes to have
become the holder of record thereof.
1.4. Delivery of Stock Certificates. As soon as practicable after
each exercise of this Warrant, and in any event within five business days
thereafter, the Company at its expense (including the payment by it of any
applicable issue taxes) will cause to be issued in the name of and delivered to
Consultant, a certificate or certificates for the number of duly authorized,
validly issued, fully paid and nonassessable shares of Warrant Stock to which
Consultant shall be entitled upon such exercise.
1.5. Partial Exercise.
(a) Fractional Shares. In the event of any partial exercise of
this Warrant, the Company will not issue certificates for any fractional shares
of the Warrant Stock to which Consultant otherwise may be entitled, and the
Company shall not be obligated to refund an amount of cash comprising the market
value of any fractional share of Warrant Stock for which the Company will not
issue a certificate.
(b) Replacement Warrant. In the event of any partial exercise
of this Warrant, at the request of Consultant and upon tender of this Warrant to
the Company, the Company shall issue a new Warrant containing the same terms and
conditions as this Warrant but calling on the face thereof for the number of
shares of Warrant Stock equal to the number of shares called for on the face of
this Warrant minus the number of shares of Warrant Stock issued upon the partial
exercise of this Warrant.
2. Certain Adjustments.
2.1. Mergers, Consolidations or Sale of Assets. If at any time there
shall be a capital reorganization (other than a combination or subdivision of
Warrant Stock otherwise provided for herein), or a merger or consolidation of
the Company with or into another corporation, or the sale of the Company's
properties and assets as, or substantially as, an entirety to any other person,
then, as a part of such reorganization, merger, consolidation or sale, lawful
2
provision shall be made so that the holder shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified in this
Warrant and upon payment of the purchase price, the number of shares of stock or
other securities or property of the Company or the successor corporation
resulting from such reorganization, merger, consolidation or sale, to which a
holder of the Common Stock deliverable upon exercise of this Warrant would have
been entitled under the provisions of the agreement in such reorganization,
merger, consolidation or sale if this Warrant had been exercised immediately
before that reorganization, merger, consolidation or sale. In any such case,
appropriate adjustment (as determined in good faith by the Company's Board of
Directors) shall be made in the application of the provisions of this Warrant
with respect to the rights and interests of the holder after the reorganization,
merger, consolidation or sale to the end that the provisions of this Warrant
(including adjustment of the purchase price then in effect and the number of
shares of Warrant Stock) shall be applicable after that event, as near as
reasonably may be, in relation to any shares or other property deliverable after
that event upon exercise of this Warrant.
2.2. Splits and Subdivisions. If the Company at any time or from
time to time after the date of this Warrant but before expiration effects a
split or subdivision of the outstanding shares of its then outstanding Common
Stock into a greater number of shares of Common Stock, or if the Company effects
a reverse split of the outstanding shares of its Common Stock into a lesser
number of shares of Common Stock, (by reclassification or otherwise than by
payment of a dividend in Common Stock), then, and in each such case, the number
of shares called for on the face of this Warrant (or the face of any replacement
Warrant issued upon partial exercise) shall be adjusted proportionally, and the
exercise price with respect to such adjusted number of shares also shall be
adjusted proportionally.
2.3. Certificate as to Adjustments. In the case of each adjustment
or readjustment of the purchase price pursuant to this Section 2, the Company
will promptly compute such adjustment or readjustment in accordance with the
terms hereof and cause a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based to be delivered to the holder of this Warrant. The Company
will, upon the written request at any time of the holder of this Warrant,
furnish or cause to be furnished to such holder a certificate setting forth:
(a) Such adjustments and readjustments;
(b) The purchase price at the time in effect; and
(c) The number of shares of Warrant Stock and the amount, if
any, of other property at the time receivable upon the exercise of the Warrant.
3. Restrictions on Transfer.
3.1. Restrictive Legends. Unless the shares issued upon exercise of
this Warrant are registered under the Securities Act of 1933 and under
applicable laws of any state, each certificate for Common Stock issued upon the
exercise of any Warrant, and each certificate issued upon the transfer of any
such Common Stock, shall be stamped or otherwise imprinted with a legend in
substantially the following form:
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY
NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF REGISTRATION, OR THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION, UNDER THE SECURITIES ACT OF 1933
AND APPROPRIATE STATE SECURITIES LAWS. FURTHERMORE, NO OFFER,
SALE, TRANSFER, PLEDGE OR HYPOTHECATION IS TO TAKE PLACE
UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL AT
SHAREHOLDER'S EXPENSE, AND SATISFACTORY TO IT, THAT AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
3.2. Notice of Proposed Transfer; Opinions of Counsel. Prior to the
transfer of any shares of Common Stock issued upon the exercise of this Warrant
and during any period during which such shares of Common Stock are not
registered by the Company under an effective registration statement filed
pursuant to the Securities Act of 1933, the holder thereof shall give written
notice to the Company, which notice shall (a) state such holder's intention to
transfer such restricted shares and to comply in all other respects with the
transfer requirements of this Warrant; (b) describe the circumstances of the
proposed transfer in sufficient detail to enable counsel to render the opinions
referred to below, and (c) designate counsel for the holder giving such notice.
The holder giving such notice shall submit a copy thereof to the counsel
designated in such notice and the Company will promptly submit a copy thereof to
its counsel. The following provisions shall then apply:
(a) If (a) in the opinion of counsel for the holder designated
in the notice the proposed transfer may be effected without registration of such
shares of Common Stock under the Securities Act of 1933 and any applicable state
securities laws, and (b) counsel for the Company shall not have rendered an
opinion within 15 days after receipt by the Company of such written notice that
such registration is required, such holder shall thereupon be entitled to
transfer such shares of Common Stock in accordance with the terms of the notice
delivered by such holder to the Company. Each Warrant or certificate, if any,
issued upon or in connection with such transfer shall bear the appropriate
restrictive legend set forth in Section 3.1, unless in the opinion of each such
counsel such legend is no longer required to insure compliance with the
Securities Act. If for any reason counsel for the Company (after having been
furnished with the information required to be furnished by clause (a) of this
Section 3.2) shall fail to deliver an opinion to the Company as aforesaid, then
for all purposes of this Warrant the opinion of counsel for the Company shall be
deemed to be the same as the opinion of counsel for such holder.
(b) If in the opinion of either or both of such counsel the
proposed transfer may not legally be effected without registration of such
shares of Common Stock under the Securities Act of 1933 or applicable state
securities laws (such opinion or opinions to state the basis of the legal
conclusions reached therein), the Company will promptly so notify the holder
thereof and thereafter such holder shall not be entitled to transfer such shares
of Common Stock until receipt of a further notice from the holder under Section
3.2 above or until registration of such shares of Common Stock under the
Securities Act or applicable state law has become effective.
4. Reservation of Shares. The Company will at all times reserve
and keep available, solely for issuance and delivery upon the exercise of the
Warrants, the number of shares of Warrant Stock that would be issuable upon the
exercise of all Warrants at the time outstanding. All such shares shall be duly
authorized and, when issued upon such exercise, shall be validly issued, fully
paid and nonassessable with no liability on the part of the holders thereof.
5. Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft of destruction of any Warrant,
upon delivery of indemnity reasonably satisfactory to the Company in form and
amount or, in the case of any such mutilation, upon surrender of such the
Company at its expense will execute and deliver, in lieu thereof, a new Warrant
of like tenor.
6. No Rights or Liabilities as Stockholder. Nothing herein shall
give or shall be construed to give the holder of this Warrant any of the rights
of a shareholder of the Company including, without limitation, the right to vote
on matters requiring the vote of shareholders, the right to receive any dividend
declared and payable to the holders of Common Stock, and the right to a pro-rata
distribution upon the Company's dissolution.
7. Notices. All notices and other communications provided for
herein shall be delivered or mailed by first class mail, postage prepaid,
addressed (a) if to the holders of any Warrant, at the registered address of
such holder as set forth in the register kept at the principal office of the
Company, or (b) if to the Company, at its principal office to the attention of
the Company's Chief Financial Officer, BriteSmile, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at the address of such other principal office of the
Company as the Company shall have furnished to each holder of any Warrants in
writing, provided that the exercise of any Warrants shall be effective only in
the manner provided in Section 1.
8. Assignment. No Warrant granted herein or any of the rights and
privileges thereby conferred shall be transferred, assigned, pledged, or
hypothecated in any way (whether by operation of law or otherwise), and no such
Warrant, right, or privilege shall be subject to execution, attachment, or
similar process. Upon any attempt so to transfer, assign, pledge, hypothecate,
or otherwise dispose of the Warrant, or of any right or privilege conferred
thereby, contrary to the provisions hereof, or upon the levy of any attachment
or similar process upon which Warrant, right, or privilege, the Warrant and such
rights and privileges shall immediately become null and void.
9. Investment Representations. In connection with his acquisition
of this Warrant, Consultant represents and warrants, and (unless the shares
underlying this Warrant are registered pursuant to the Securities Act of 1933)
in connection with any exercise of this Warrant Consultant will represent and
warrant, as follows:
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9.1. Consultant is acquiring the Warrant and the Warrant Stock
(together, the "Securities") for his own account; no other person has any direct
or indirect beneficial ownership in the Securities.
9.2. Consultant is acquiring the Securities for investment, with no
present intention of distributing or selling any of the Securities or any
interest therein.
9.3. Consultant has the capacity to protect his own interests in
connection with the acquisition of the Securities. He has such knowledge and
experience in financial and business matters generally, and about the Company in
particular, that he is capable of evaluating the merits and risks of his
acquisition of the Securities.
9.4. Consultant acknowledges that as of the date hereof, and as of
the date of any exercise of the Warrants, he has read and analyzed, and retained
copies of this Agreement and the following documents:
(a) The two most recent Annual Reports on Form 10-K of the
Company;
(b) Any and all Quarterly Reports on Form 10-Q of the
Company filed since the latest Form 10-K Annual Report; and
(c) Any and all Current Reports on Form 8-K of the Company
filed since the latest Form 10-K Annual Report.
9.5. Consultant has been informed and understands that there are
risks associated with purchasing the Securities, including those risks of
ownership of Common Stock of the Company identified in the Company's Annual
Reports on Form 10-K. Consultant is capable of bearing the economic risk of
ownership of the Securities including, but not limited to, the possibility of
the complete loss of the value of the Securities and the restrictions on
transferability of the Securities.
10. Registration. The Company shall cause the Warrant Stock to be
included in a registration statement filed under the Securities Act of 1933 on
Form S-8.
11. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant shall be governed by the laws of the State of Utah. The
headings of this Warrant are inserted for convenience only and shall not be
deemed to constitute a part hereof.
12. Expiration. The Warrants granted herein shall in no event be
exercisable after _________________.
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IN WITNESS WHEREOF, this Warrant has been signed on ________________.
BRITESMILE, INC.
By: _____________________________
Title: ____________________________
---------------------------------
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EXHIBIT A
SUBSCRIPTION
(To be executed by the holder of the Warrant to exercise the
right to purchase Common Stock evidenced by the Warrant)
To: Chief Financial Officer
BriteSmile, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The undersigned hereby irrevocably subscribes for
___________________ shares of the Common Stock, par value $.001 per share, of
BriteSmile, Inc., a Utah corporation, pursuant to and in accordance with the
terms and conditions of a Warrant dated effective _________________ (the
"Warrant"), and tenders with the Warrant and this Subscription Agreement payment
of $_____________________ as payment for the shares, and requests that a
certificate for such shares be issued in the name of the undersigned and be
delivered to the undersigned at the address stated below.
NAME:__________________________________________________
ADDRESS:__________________________________________________
------------------------------------------------------------
SOCIAL SECURITY NUMBER:__________________________________
--------------------------------------------------
Signed
DATED:______________________________________________________
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