As filed with the Securities and Exchange Commission on January 30, 2004
Registration Statement No. ___________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
----------------------
BRITESMILE, INC.
(Exact name of registrant as specified in its charter)
----------------------
UTAH 87-0410364
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
490 North Wiget Lane
Walnut Creek, CA 94598
(925) 941-6260
(Address, including zip code, and
telephone number, including area code,
of registrant's principal
executive offices)
----------------------
JOHN C. DONG
CHIEF FINANCIAL OFFICER
BriteSmile, Inc.
490 North Wiget Lane
Walnut Creek, CA 94598
(925) 941-6260
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
COPY TO:
JEFFREY M. JONES, ESQ.
WAYNE D. SWAN, ESQ.
DURHAM JONES & PINEGAR, P.C.
BROADWAY CENTRE, SUITE 900
111 EAST BROADWAY
SALT LAKE CITY, UTAH 84111
(801) 415-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: from time to
time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] .0000809.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ________.
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
================================================================================================
Proposed Proposed
Maximum Maximum
Title of Class of Amount Offering Aggregate Registra-
Securities To be Price Offering tion
to be Registered Registered Per Share Price Fee
------------------------------------------------------------------------------------------------
Common Stock, 369,577 shares(1) $ 32.76(2) $12,107,342.52(2) $1,534.00
$0.001 par value
per share
------------------------------------------------------------------------------------------------
(1) To be adjusted to up to 923,959 shares pursuant to a 5 for 2 forward
split of all outstanding shares of Common Stock of the Company
effective on the stock split distribution date, January 30, 2004.
(2) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) on the basis of the average high and low sale
price of the common stock on the Nasdaq SmallCap Market on January 26,
2004.
Pursuant to Rule 416, there are also registered hereby such additional
indeterminate number of shares of such Common Stock as may become issuable as
dividends or to prevent dilution resulting from stock splits, stock dividends or
similar transactions.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a)
OF THE ACT, MAY DETERMINE.
==============================================================================
ii
Prospectus Subject to Completion, Dated January 30, 2004
The information in this prospectus is not complete, and it may change. This
prospectus is included in a registration statement that BriteSmile filed with
the Securities and Exchange Commission. The selling shareholders cannot sell
these securities until that registration statement becomes effective. This
prospectus is not an offer to sell these securities or the solicitation of an
offer to buy these securities in any state where an offer to sell or the
solicitation of an offer to buy is not permitted.
[GRAPHIC OMITTED][GRAPHIC OMITTED]
BriteSmile, Inc.
369,577 Shares(1)
Common Stock
This prospectus relates to the public offering of 369,577 Shares(1) of
our common stock that may be resold from time to time by the selling
shareholders named in this prospectus.
Our common stock is quoted on the Nasdaq SmallCap Market and trades
under the symbol "BSML". The last reported sale price for the common stock on
January 28, 2004 on the Nasdaq SmallCap Market was $30.62 per share.
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. YOU SHOULD CAREFULLY
REVIEW THE RISK FACTORS BEGINNING ON PAGE 4 FOR A DISCUSSION OF THINGS YOU
SHOULD CONSIDER BEFORE BUYING SHARES OF OUR COMMON STOCK. YOU SHOULD BE PREPARED
TO ACCEPT ALL OF THE RISKS ASSOCIATED WITH PURCHASING THE SHARES, INCLUDING A
LOSS OF YOUR INVESTMENT.
--------------------
The Securities and Exchange Commission and state securities regulators have
not approved or disapproved the shares, or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
January __, 2004
(1)Subject to 5 for 2 stock split which will be effective on January 30, 2004,
pursuant to which the 369,577 shares will be converted to up to 923,959 shares.
Table of Contents
Table of Contents.........................................................2
Summary...................................................................3
Risk Factors..............................................................4
Explanation About Forward-Looking Information.............................9
Use of Proceeds...........................................................9
Dividend Policy..........................................................10
Selling Shareholders.....................................................11
Plan of Distribution.....................................................12
Legal Matters............................................................13
Experts..................................................................14
SEC Position on Indemnification..........................................14
Where You Can Find More Information......................................14
The terms "company," "BriteSmile," "we," "us," and "our" in this prospectus
refer to BriteSmile, Inc.
We have not authorized any person to provide you with information that differs
from what is in this prospectus. If anyone provides you with different or
inconsistent information, you should not rely on it. The selling shareholders
are not making an offer to sell these securities in any jurisdiction where the
offer or sale is not permitted. You should assume that the information appearing
in this prospectus is accurate as of the date on the front cover of this
prospectus only. Our business, financial condition, results of operations and
prospects may have changed since that date.
---------------------
2
Summary
This summary highlights selected information and does not contain all
of the information that is important to you. We urge you to read the entire
prospectus carefully and any information contained in or incorporated by
reference in this prospectus before you decide whether to buy our common stock.
You should pay special attention to the risks of investing in our common stock
discussed under "Risk Factors."
BriteSmile
We develop, produce, sell and lease advanced teeth whitening products,
services and technology. Our operations include the development of
technologically advanced teeth whitening processes that are distributed in
professional salon-like settings known as BriteSmile Professional Teeth
Whitening Centers, and in existing dental offices known as BriteSmile
Professional Teeth Whitening Associated Centers.
We offer consumers a new, simple and safe way to return teeth to their
optimal natural whiteness in just one visit to a BriteSmile Center or BriteSmile
Associated Center. The BriteSmile teeth whitening system uses a combination of
our proprietary gas plasma light technology and wavelength specific gel. The
power level is well below that used in other bleaching systems, resulting in
greater comfort to consumers without sacrificing the speed of the whitening
process. Our unique fiberoptic delivery arm permits blue-green light to reach
all sixteen front teeth simultaneously, whitening the teeth by activating the
wavelength specific gel, which is applied to the teeth during three consecutive
twenty-minute sessions. Including the time necessary for initial customer
evaluation and consultation, prep work and clean up, the customer can complete
an entire teeth whitening visit in approximately 90 minutes.
As of January 1, 2004, we operated 14 centers in the following
locations: Beverly Hills, Irvine, Walnut Creek, Palo Alto and La Jolla, CA;
Chicago, IL; Phoenix, AZ; Boca Raton, FL; Honolulu, HI; Atlanta, GA; Houston,
TX; Denver, CO; Boston, MA; and New York, NY. We have also contracted with
dentists to operate approximately 4,900 associated centers throughout the United
States and around the world in countries including Argentina, Belgium, France,
Italy, Japan, the Netherlands, Singapore and Switzerland. We may choose to close
centers if necessary to achieve our financial goals. We plan to open additional
centers and associated centers in the United States and in select foreign
locations in the future.
In addition to our services, we also sell BriteSmile brand
post-whitening maintenance products, including our BriteSmile-To-Go "whitening
pen," toothpaste, toothbrushes, mouthwash, chewing gum, travel kits, and breath
mints, to consumers in centers, associated centers, and on our e-Commerce
Internet site.
We were incorporated in Utah in 1984 under the name Ion Laser
Technology, Inc. In 1998 we changed our name to BriteSmile, Inc. Our principal
executive office is located at 490 North Wiget Lane, Walnut Creek, CA 94598. Our
telephone number at that office is (925) 941-6260.
This Offering
The selling shareholders are offering 369,577 shares of common stock
(to be adjusted effective January 30, 2004 to up to 923,959 shares pursuant to a
5 for 2 forward stock split, the "Shares") under this prospectus. The selling
shareholders acquired these shares in a private placement that was completed on
January 2, 2004. In connection with that offering, we sold the shares to the
selling shareholders for $23 per share, or total proceeds of $8.5 million. In
addition, we paid a fee to our placement agent for the offering consisting of
cash compensation of $467,500. Because these securities were issued in reliance
upon exemptions from the registration requirements of the Securities Act, they
are restricted securities, meaning that they cannot be resold in the absence of
registration or an available exemption from registration under the Securities
Act and applicable state securities laws.
We granted the investors and the placement agent in the private
offering registration rights with respect to the common stock issued in the
private placement of the placement. Under the registration rights granted to the
private placement investors, we agreed to file a registration statement covering
the Shares with the SEC within 20 business days from the closing date of January
2, 2004.
3
Risk Factors
An investment in our common stock involves a high degree of risk. You
should carefully consider the risks described below in addition to the other
information presented in this prospectus or incorporated by reference into this
prospectus before deciding to invest in our common stock. The risks and
uncertainties described below are not the only ones facing BriteSmile.
Additional risks and uncertainties not presently known to us or that we
currently deem immaterial may also impair our business operations. If any of the
following risks actually occur, our business, financial condition, or results of
operations could be materially adversely affected. As a result, the market price
of our common stock could decline, and you may lose all of your investment.
We have a limited operating history upon which to evaluate our
likelihood of success.
We have only manufactured and distributed our BS2000 light-activated
teeth whitening technology ("LATW") since November 1998, our BS3000 since
November 1999, and our BS3000PB since May 2001. We opened our first BriteSmile
Center in Walnut Creek, California in February 1999, and BriteSmile Associated
Centers began performing teeth whitening procedures in April 1999. Therefore, we
have a limited relevant operating history upon which to evaluate the likelihood
of our success. You must evaluate the likelihood of our success in light of the
risks, expenses and difficulties frequently encountered in the operation and
expansion of a new business and the development and marketing of new products.
We cannot be certain that our business strategy will be successful or that we
will successfully address these risks and difficulties. Our failure to address
any of these risks or difficulties could have a material adverse effect on our
business.
We have a history of losses and accumulated deficit and this trend of
losses may continue in the future.
For the fiscal year ended December 28, 2002, we had a net loss of $19.1
million. For the fiscal year ended December 29, 2001, our net loss was $26.5
million. As of December 28, 2002, our accumulated deficit was $135.7 million.
Our ability to reach and sustain profitability will depend, in part, upon the
successful marketing of our existing services and products and the successful
and timely introduction of new services and products. We anticipate that net
losses will continue for the foreseeable future. We cannot assure you that we
will achieve profitability or, if achieved, that we will sustain profitability.
Our success will depend on acceptance of our LATW process and
post-whitening maintenance products.
We derive substantially all of our revenues from our LATW procedures, a
relatively new teeth whitening concept for consumers. We also market the
BriteSmile To Go "whitening pen" applicators, BriteSmile brand toothpaste,
electric toothbrushes, mouthwash, chewing gum and post-whitening procedure
touchup kits through our centers and associated centers. Our success will depend
in large part on our ability to successfully encourage consumers, dentists and
dental office employees to switch from traditional and less expensive bleaching
tray whitening methods to our LATW system, and on our ability to successfully
market our line of post-whitening maintenance products. There can be no
assurance that consumers will accept our procedure or products. Typically,
medical and dental insurance policies do not cover teeth whitening procedures,
including our LATW procedure, or whitening maintenance products, which may have
an adverse impact upon the market acceptance of our products and services.
4
Our success will depend on our ability to update our technology to
remain competitive.
The dental device and supply industry is subject to rapid technological
change. As technological changes occur in the marketplace, we may have to modify
our products in order to become or remain competitive or to ensure that our
products do not become obsolete. While we are continuing our research and
development efforts to improve our current LATW systems in order to strengthen
our competitive advantage, we cannot assure you that we will successfully
implement design or technological improvements to our LATW systems on a timely
basis, or at all. If we fail to anticipate or respond in a cost-effective and
timely manner to government requirements, market trends or customer demands, or
if there are any significant delays in product development or introduction, our
revenues and profit margins may decline which could adversely affect our cash
flows, liquidity and operating results.
We may have problems financing our future growth.
Our growth strategy includes investment in and expansion of our centers
and associated centers throughout the United States and internationally,
increasing awareness of the BriteSmile brand and developing and marketing our
brand name retail products. To finance our prior growth we have sold debt and
equity securities; however, additional funds are needed in the future for
continued expansion. We cannot assure you that additional financing will be
available or that, if available, it will be on terms favorable to our
shareholders or us. If needed funds are not available, we may be required to
close existing centers, and/or limit or forego the establishment of new centers
or associated centers and the development of new products, or limit the scope of
our current operations, which could have a material adverse effect on our
business, operating results and financial condition. We may be required to take
other actions that may reduce the market price of our common stock, including
borrowing money on terms that are not favorable to us.
We may not be able to effectively compete with our competition.
The market for teeth whitening products and services is highly
competitive. Competition in the market for teeth whitening products and services
may intensify in the future. Numerous well-established companies and smaller
entrepreneurial companies are focusing significant resources on developing and
marketing products and services that will compete with our products and
services. In addition, many of our current and potential competitors have
greater financial, technical, operational and marketing resources. Teeth
whitening products and services offered by our competitors include traditional
and often less expensive bleaching tray methods and other forms of heat or light
activated curing methods. We may not be able to compete successfully against
these competitors in developing, marketing and distributing our services and
products, which could result in the loss of customers and could have a material
adverse effect on our business. Competitive pressures may also force prices for
teeth whitening services down and those price reductions may adversely affect
our potential future revenue.
We are susceptible to product liability suits and if a lawsuit is
brought against us it could result in us having to pay large legal
expenses and/or judgments.
Although no lawsuits have been filed against BriteSmile relating to our
products or services, because of the nature of the dental device industry, there
can be no assurance that we will not be subject to such claims in the future.
Our products come into contact with vulnerable areas of the human body, such as
the mouth, tongue, teeth and gums, and, therefore, the sale and support of
dental products makes us susceptible to the risk of claims for injuries. A
successful product liability claim or claim arising as a result of use of our
products or services brought against us, or the negative publicity brought up by
these types of claims, could have a material adverse effect on our business. We
maintain product liability insurance with coverage limits of $5 million per
occurrence and $5 million per year. Although we believe that we maintain
adequate insurance coverage that is reasonable and customary for our business,
we cannot assure that the amount of insurance will be adequate to satisfy claims
made against us in the future, or that we will be able to obtain insurance in
the future at satisfactory rates or in adequate amounts.
5
Future growth may place strains on our managerial, operational and
financial resources and we may be unable to recruit and retain
qualified personnel.
If we grow as expected, a significant strain on our managerial,
operational and financial resources may occur. Further, as the number of our
centers, associated centers, customers, advertisers and other business partners
grows, we will be required to manage multiple relationships with various
associated center dentists, customers, strategic partners and other third
parties. Future growth or increase in the number of our strategic relationships
may strain our managerial, operational and financial resources, thereby
inhibiting our ability to achieve the rapid execution necessary to successfully
implement our business plan. In addition, our future success will also depend on
our ability to expand our sales and marketing organization and our support
organization commensurate with the growth of our business.
We may experience shortages of the supplies we need because we do not
have long-term agreements with suppliers.
Our success depends to a significant degree on our ability to provide
our affiliated dentists with our LATW systems, and a sufficient supply of teeth
whitening gels and maintenance products. Since our BS2000 was first used
commercially, we have relied upon manufacturing and supply agreements with
multiple suppliers and a single manufacturer of our LATW systems. Effective
April 2001, our LATW systems are manufactured by Peak Industries of Longmont,
Colorado. We have no long-term purchase contracts or other contractual assurance
of continued supply, pricing or access to new products. While we believe that we
have good relationships with our suppliers and our manufacturer, if we are
unable to extend or secure manufacturing services or to obtain component parts
or finished products from one or more key vendors on a timely basis and on
acceptable commercial terms, our results of operations could be seriously
harmed.
We need to successfully manage our growth in order for the addition of
any new BriteSmile Centers and BriteSmile Associated Centers to be
profitable.
Although we have grown significantly in the past five years in terms of
numbers of centers and associated centers opened and in operation, we may not be
able to achieve profitable operations at these centers. We currently have 14
centers in operation. Although we plan to open additional centers over the next
two years, successful introduction of any new centers is subject to, among other
things, securing suitable sites on satisfactory terms, hiring, training and
retaining qualified dentists, support staff and other personnel, having adequate
capital resources and successfully integrating new centers into existing
operations. It is possible that any new centers, if opened, will not achieve
sales levels comparable to existing centers. Our future growth depends primarily
upon expansion of the number of our associated centers. We cannot assure you
that we will be successful in expanding the number of associated centers, or
that these new associated centers will achieve sales levels satisfactory to us.
BriteSmile has certain debt.
BriteSmile had approximately $6.0 million of interest-bearing debt
outstanding as of January 29, 2004. The degree to which BriteSmile is leveraged
could have important consequences to the shareholders, including the following:
o BriteSmile's ability to obtain additional financing for working
capital, capital expenditures, acquisitions or general corporate
purposes may be impaired;
o BriteSmile must pay interest on its debt, leaving less funds for other
purposes;
o BriteSmile may be at a competitive disadvantage to its less leveraged
competitors; and
o BriteSmile may be more vulnerable to a downturn in general economic
conditions.
If BriteSmile were to default on its debt obligations for any reason,
there can be no assurance that any assets will remain for BriteSmile's
6
shareholders after payment of amounts owed to debt holders.
We do not intend to pay dividends.
We do not anticipate paying any cash dividends on our common stock to
our shareholders for the foreseeable future. We intend to retain future
earnings, if any, for use in the operation and expansion of our business. In
addition, it is possible that any debt financing agreements entered into by us
in the future may contain restrictions on our ability to declare dividends.
We cannot guarantee that the patents we have applied for will be
granted, or that even if granted, they will not be infringed by
competitors.
The Company has an expansive and growing portfolio of patents to
protect its intellectual property rights. In 2002, a number of patents relating
to the LATW systems were granted, including patents covering the methods of
whitening comprising of a bleaching composition exposed to light to accelerate
whitening, which has been asserted in a patent lawsuit against a major
competitor. The Company also has a number of patent applications related to the
composition of our whitening gel, tissue isolation useful in light-activated
teeth whitening, our business method and our unique system of delivery of light
to all teeth simultaneously. In addition, we have ongoing research and
development efforts to improve and expand our current technology, and to develop
new teeth whitening compositions and light devices. Although we intend to
continue to apply for patents as advised by patent counsel, we cannot assure you
that additional patents will be issued or that, if they are issued, any new
patents or our existing patents will not be infringed upon by third parties or
that they will cover all aspects of the product or system to which they relate.
The rights we rely upon to protect our intellectual property underlying
our products and services may not be adequate, which could enable third
parties to use our technology and would reduce our ability to compete
in the market.
In addition to patents, we rely on a combination of trade secrets,
copyright and trademark laws, nondisclosure agreements and other contractual
provisions and technical measures to protect our intellectual property rights.
Nevertheless, these measures may not be adequate to safeguard the technology
underlying our products and services. If they do not protect our rights, third
parties could use our technology, and our ability to compete in the market would
be reduced. In addition, employees, consultants and others who participate in
the development of our products and services may breach their agreements with us
regarding our intellectual property, and we may not have adequate remedies for
the breach. We also may not be able to effectively protect our intellectual
property rights in some foreign countries. For a variety of reasons, we may
decide not to file for additional patent, copyright or trademark protection
outside of the United States or in foreign jurisdictions. We also realize that
our trade secrets may become known through other means not currently foreseen by
us. Notwithstanding our efforts to protect our intellectual property, our
competitors may independently develop similar or alternative technologies or
products that are equal or superior to our technology and products without
infringing on any of our intellectual property rights or design around our
proprietary technologies.
Our products or services could infringe on the intellectual property
rights of others, which may cause us to engage in costly litigation
and, if we are not successful, could also cause us to pay substantial
damages and prohibit us from selling our products or services.
Third parties may assert infringement or other intellectual property
claims against us. We may have to pay substantial damages, including treble
damages, for past infringement if it is ultimately determined that our products
or services infringe a third party's proprietary rights. Further, we may be
prohibited from selling our products before we obtain a license, which, if
available at all, may require us to pay substantial royalties. Even if these
claims are without merit, defending a lawsuit takes significant time, may be
expensive and may divert management's attention from other business concerns.
We are subject to government regulation regarding the corporate
practice of dentistry.
Our corporate structure, operation of centers and contractual
relationships with the licensed dentists at our centers are subject to
government regulation and may be reviewed by applicable state agencies governing
7
the practice of dentistry (such as a Board of Dental Examiners). We believe that
our present and contemplated operation of centers is and will be in compliance
in all material respects with applicable federal, state and local laws and
regulations, and that favorable review of our corporate structure would be
obtained from any state agency which chooses to review our operational
structure. However, we cannot assure you that favorable review would be obtained
in all instances. If we are unable to obtain favorable review, we may be subject
to penalties. Further, if we are unable to comply with the applicable laws and
regulations in any state, we may be limited in those states to offering our LATW
procedure through associated centers. We continue to cooperate with state
regulatory agencies to respond to any requests for information about our
business structure and to obtain any necessary governmental approvals. We cannot
assure you that future enactments, amendments or interpretations of government
regulations will not be more stringent, and will not require structural,
organizational or operational modifications to our existing or future
contractual relationships with the licensed dentists at our centers who provide
our services.
We may become subject to government regulation regarding our teeth
whitening services and products.
The light used in the LATW systems is categorized as a Class I Medical
Device as defined by the Food and Drug Administration ("FDA"). As long as the
light is used specifically to perform cosmetic dental procedures (teeth
whitening), it is not subject to pre-market notification requirements, although
we are subject to FDA requirements regarding handling of complaints and other
general FDA record keeping standards. We cannot assure you that some or all of
the existing government regulations will not change significantly or adversely
in the future, or that we will not become subject to compliance with additional
and stricter government regulations which could, in the future, affect our
potential future revenue.
Ownership of our common stock is concentrated in a limited number of
shareholders.
Current directors and executive officers of BriteSmile, or their
affiliates, own and control more than a majority of our common stock and,
therefore, have ultimate authority to make all major decisions affecting our
business, including the identity and make-up of our Board of Directors, and any
other matters requiring approval of the shareholders.
Our efforts to build strong brand identity and customer loyalty may not
be successful.
We believe that establishing and maintaining brand identity and brand
loyalty is critical to attracting customers, dentists and other strategic
partners. In order to attract and retain these groups, and respond to
competitive pressures, we intend to continue substantial spending to create and
maintain brand loyalty. We believe that advertising rates, and the cost of
advertising campaigns in particular, could increase substantially in the future.
If our branding efforts are not successful, our results of operations could be
adversely affected.
Promotion and enhancement of the BriteSmile brand will also depend on
our success in consistently providing a high-quality customer experience for our
teeth whitening services and satisfaction with our products. If customers do not
perceive our service and product offerings to be of high quality, or if we
introduce new services and products that are not favorably received by these
groups, the value of the BriteSmile brand could be harmed. Any brand impairment
or dilution could decrease the attractiveness of BriteSmile to one or more of
these groups which could harm our reputation, reduce our net revenue and cause
us to lose customers.
Failures in our information technology systems or the systems of third
parties could adversely affect our business and result in a loss of
customers.
Our web site or our Internet-based scheduler system may experience slow
response times, decreased capacity to accommodate a large number of customers or
a temporary disruption in service for a variety of reasons. Additionally, power
outages and delays in these services may interrupt or prevent us from
immediately coordinating with the schedules of centers and associated centers,
and may interrupt or prevent customers from arranging for our services or from
ordering our products through our e-commerce Internet site. Any of these
potential problems could have an adverse effect on business.
8
Computer hardware and software components to our scheduler system are
located at our headquarters. In addition, a back-up file server and tape
back-ups of the scheduler database reside both at our headquarters and off-site.
Delays in scheduling teeth whitening procedures would result if we were required
to use our backup computer hardware and software systems. Nevertheless, natural
disasters such as floods, fires, and power outages, telecommunications failures,
physical or electronic break-ins or vandalism, viruses and other similar events
could damage our hardware and software systems, lead to a loss of data, cause
substantial disruption in our business operations, and have a material adverse
effect on our business.
Changes in required accounting practices may affect our reported operating
results and stock price
Any future changes to applicable generally accepted accounting
principles or additional SEC rules on relevant accounting policies may require
us to further change our accounting practices.
Explanation About Forward-Looking Information
This prospectus, including information contained in documents that are
incorporated by reference in this prospectus, contains "forward-looking
statements," as that term is defined by federal securities laws, that relate to
the financial condition, results of operations, plans, objectives, future
performance and business of BriteSmile. These statements are frequently preceded
by, followed by or include the words "believes," "expects," "anticipates,"
"estimates" or similar expressions. We based these forward-looking statements on
our current expectations and projections about future events. These
forward-looking statements are not guarantees of future performance and are
subject to risks, uncertainties and assumptions, including, among other things:
o Anticipated trends in our business, including consumer acceptance of
and willingness to pay for teeth whitening services;
o Adequacy of our management and infrastructure to manage growth in
sales and locations;
o Deployment of additional centers at new locations and increasing sales
at existing locations;
o Securing capital for future acquisitions and growth; and
o Adaptation to changes in the regulatory environment.
In addition to these risks, in the section of the prospectus entitled
"Risk Factors" we have summarized a number of the risks and uncertainties that
could affect the actual outcome of the forward-looking statements included in
this prospectus. We advise you not to place undue reliance on these
forward-looking statements in light of the material risks and uncertainties to
which they are subject. We undertake no obligation to publicly update or revise
any forward-looking statements, whether as a result of new information, future
events or otherwise.
Use of Proceeds
The shares of common stock being offered are solely for the accounts of
the selling shareholders. BriteSmile will not receive any proceeds from the sale
of the common stock.
9
Dividend Policy
We have never paid cash dividends on our common stock. We intend to
retain future earnings, if any, for use in the operation and expansion of our
business and do not anticipate paying any cash dividends in the foreseeable
future. The declaration and payment of dividends are subject to the discretion
of our board of directors. In addition, it is possible that any debt financing
agreements entered into in the future may contain restrictions on our ability to
declare dividends with respect to our common stock.
10
Selling Shareholders
The table below lists the selling shareholders and other information
regarding the actual or potential beneficial ownership of our common stock by
each of the selling shareholders as of January 2, 2004.
The second column of the table sets forth the number of shares
beneficially held by each selling shareholder on January 2, 2004 The information
provided in this table has been obtained from the selling shareholders.
Shares Owned Percentage of
by or Issuable Shares Owned Shares
to Selling Beneficially Beneficially
Shareholder Shares Offered After this Owned After
Name of Selling Shareholders Prior to Hereby Offering the Offering
Offering (1)
--------------------------------------- ---------------- ------------------ --------------- ---------------
Alpha Capital AG.................. - 17,391 - -
Gamma Opportunity Capital Partners, LP - 9,783 - -
Micro Capital Fund LP............. 208,826 86,957 121,869 3.0
Micro Capital Fund Ltd............ 156,672 86,957 69,715 1.7
The Lynch Foundation u/a 07/14/88. 35,392 17,392 18,000 *
Peter and Carolyn Lynch JTWROS.... 42,827 22,827 20,000 *
Lynch Childrens Trust fbo Anne Lynch 3,866 2,066 1,800 *
u/a 3/8/88........................
Lynch Childrens Trust fbo Elizabeth 3,866 2,066 1,800 *
Lynch u/a 3/08/88.................
Lynch Childrens Trust fbo Mary Lynch 3,866 2,066 1,800 *
u/a 03/08/88......................
Peter S. Lynch Charitable Lead 3,348 1,848 1,500 *
Annuity Trust u/a/ 3/27/96........
Peter S. Lynch Charitable UnitTrust 3,766 2,066 1,700 *
u/a 03/03/97......................
Peter S. Lynch Charitable Remainder 18,892 14,892 4,000 *
Trust u/a 12/28/99................
Portside Growth and Opportunity Fund - 10,870 - -
Magellan International Ltd........ - 48,913 - -
TCMP3 Partners.................... - 8,700 - -
Vertical Ventures Investments, LLC - 34,783 - -
---------------------
* Less than 1%.
11
(1) Beneficial ownership is determined in accordance with the rules of the
SEC and generally includes voting or investment power with respect to
securities, subject to community property laws where applicable. Shares
of common stock that a person has the right to acquire within 60 days,
through the conversion or exercise of any security or other right, are
deemed to be beneficially owned by the person holding those securities
or rights. Except as indicated in the footnotes to this table and as
provided pursuant to applicable community property laws, the
shareholders named in the table have sole voting and investment power
with respect to the shares set forth opposite each shareholder's name.
Plan of Distribution
We are registering the resale of shares of common stock on behalf of
the selling shareholders. The selling shareholders or, subject to applicable law
and the registration rights granted to them in connection with the private
placement of the shares, their transferees, may offer and resell the shares from
time to time, either in increments or in a single transaction. They may also
decide not to sell all of the shares they are allowed to resell under this
prospectus. The selling shareholders will act independently of us in making
decisions with respect to the timing, manner and size of each sale.
The selling shareholders may sell the shares in one or more types of
transactions:
o on the Nasdaq SmallCap Market;
o in negotiated transactions;
o in ordinary brokers' transactions;
o in transactions involving cross or block trades or otherwise on the
Nasdaq SmallCap Market;
o in purchases by brokers, dealers or underwriters as principal and
resale by those purchasers for their own accounts under this
prospectus;
o "at the market" to or through market makers or into an existing market
for the common stock;
o in other ways not involving market makers or established trading
markets, including direct sales to purchasers or sales effected
through agents;
o through transactions in options, swaps or other derivatives (whether
exchange-listed or otherwise); or
o to cover short sales.
The shares may be sold at market prices prevailing at the time of sale,
or at negotiated prices. These transactions may or may not involve brokers or
dealers. In effecting sales, brokers or dealers engaged by the selling
shareholders may arrange for other brokers or dealers to participate in the
resales. The selling shareholders may enter into hedging transactions with
broker-dealers, and in connection with those transactions, broker-dealers may
engage in short sales of the shares. The selling shareholders also may sell
shares short and deliver the shares to close out such short positions. The
selling shareholders also may enter into option or other transactions with
broker-dealers that require the delivery to the broker-dealer of the shares,
which the broker-dealer may resell pursuant to this prospectus. The selling
shareholders also may pledge the shares to a broker-dealer or financial
institution, and upon a default, the broker-dealer or financial institution may
effect sales of the pledged shares pursuant to this prospectus.
Brokers, dealers or agents may receive compensation in the form of
commissions, discounts or concessions from selling shareholders in amounts to be
negotiated in connection with the sale. The selling shareholders and any
participating brokers or dealers may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales and any such
12
commission, discount or concession may be deemed to be underwriting
compensation. The selling shareholders will pay all brokerage commissions and
similar selling expenses, if any, attributable to the sale of the shares.
We have agreed to indemnify each selling shareholder against
liabilities that may arise in connection with the registration, offer and sale
of the shares, including liabilities arising under the Securities Act. The
selling shareholders also may agree to indemnify any agent, dealer or
broker-dealer that participates in transactions involving sales of shares
against liabilities that may arise in connection with the registration, offer
and sale of the shares, including liabilities under the Securities Act. See,
however, the information describing the position of the SEC concerning
indemnification for liabilities under the Securities Act in the section
captioned "SEC Position on Indemnification," on page 14 of this prospectus.
Information as to whether underwriters who the selling shareholders may
select, or any other broker-dealer, is acting as principal or agent for the
selling shareholders, the compensation to be received by underwriters that the
selling shareholders may select or by any broker-dealer acting as principal or
agent for the selling shareholders, and the compensation to be paid to other
broker-dealers, in the event the compensation of such other broker-dealers is in
excess of usual and customary commissions, will, to the extent any such
information exists or is required, be set forth in a supplement to this
prospectus. The supplement will disclose:
o the name of each applicable selling shareholder and of the
participating broker-dealers,
o the number of shares involved,
o the price at which those shares are sold,
o the commissions paid or discounts or concessions allowed to those
broker-dealers, where applicable,
o that the broker-dealers did not conduct any investigation to verify
the information in this prospectus, and
o any other facts material to the transaction.
Because they may be deemed to be underwriters, the selling shareholders
and any dealer or broker participating in any distribution of the shares may be
required to deliver a copy of this prospectus, including a prospectus
supplement, if any, to any person who purchases any of the shares from or
through that dealer or broker. This might include delivery through the
facilities of the Nasdaq SmallCap in accordance with Rule 153 of the Securities
Act.
We have advised the selling shareholders that during such time as they
may be engaged in a distribution of the shares they are required to comply with
Regulation M promulgated under the Exchange Act. Regulation M generally
precludes any selling shareholder, any affiliated purchasers and any
broker-dealer or other person who participates in a distribution from bidding
for or purchasing, or attempting to induce any person to bid for or purchase any
security that is the subject of the distribution until the entire distribution
is complete. Regulation M also prohibits any bids or purchases made in order to
stabilize the price of a security in connection with the distribution of that
security. All of the foregoing may affect the marketability of the common stock.
Under the Exchange Act, any person engaged in the distribution of the
shares of common stock may not simultaneously engage in market-making activities
with respect to the common stock for five business days prior to the start of
the distribution. In addition, each selling shareholder and any other person
participating in a distribution will be subject to the Exchange Act, which may
limit the timing of purchases and sales of common stock by the selling
shareholder or any such other person.
Legal Matters
The validity of the Shares will be passed upon for BriteSmile by Durham
Jones & Pinegar, P.C., Broadway Centre, Suite 900, 111 East Broadway, Salt Lake
City, Utah 84144.
13
Experts
The 2002 financial statements and the related 2002 financial statement
schedule incorporated in this prospectus by reference from the Company's Annual
Report on Form 10-K for the year ended December 28, 2002 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
The 2001 financial statements, the related 2001 financial statement
schedule, and the financial statements for the 39 weeks ended December 30, 2000,
incorporated in this prospectus by reference from the Company's Annual Report on
Form 10-K for the year ended December 28, 2002, have been audited by Ernst &
Young LLP, independent auditors, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
SEC Position on Indemnification
Sections 16-10a-901 et. seq. of the Utah Business Corporation Act,
together with Article 5 of our bylaws, provide for indemnification of our
directors, officers, employees, fiduciaries or agents, subject to the
determination in each instance that indemnification is in accordance with the
standards set forth in the Utah Act and in the bylaws. We may purchase and
maintain liability insurance on behalf of a person who is or was a director,
officer, employee, fiduciary, or agent against liability asserted against or
incurred by him or her in that capacity or arising from his or her status as a
director, officer, employee, fiduciary, or agent, whether or not we would have
power to indemnify him or her against the same liability under the provisions of
the bylaws.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling BriteSmile
pursuant to the foregoing provisions, or otherwise, we have been informed that
in the opinion of the SEC this indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
Where You Can Find More Information
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. Our filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's Public Reference Rooms in Washington, D.C.,
New York, New York, and Chicago, Illinois. The Public Reference Room in
Washington, D.C. is located at 450 Fifth Street, N.W. Please call the SEC at
1-800-SEC-0330 for further information on the Public Reference Rooms.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and the information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference into this prospectus and refer you to the documents
listed below:
o Our Annual Report on Form 10-K for the fiscal year ended December 28,
2002;
o Our Quarterly Reports on Form 10-Q, as the same may have been amended,
for the 13 week periods ended March 29, 2003, June 28, 2003, and
September 27, 2003;
o Our Form 8-A Registration Statement filed April 4, 2000;
o Our Current Reports on Form 8-K that have been filed since December
28, 2002; and
o Any future filings we will make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus and prior to the filing of a post-effective amendment that
indicates that all shares offered have been sold or which deregisters
all shares then remaining unsold.
14
This prospectus is part of a registration statement on Form S-3 filed
with the SEC under the Securities Act of 1933. This prospectus does not contain
all of the information set forth in the registration statement. You should read
the registration statement for further information about our company and the
common stock. You may request a copy of any or all of these documents without
charge. You should direct written or telephone requests for copies to our
principal office: BriteSmile, Inc., 490 North Wiget Lane, Walnut Creek, CA
94598, Attention: Chief Financial Officer (telephone: (925) 941-6260).
15
----------------------------------------------------------
Table of Contents
Summary 3
Risk Factors 4
Explanation About Forward-Looking
Information 9
Use of Proceeds 9
Dividend Policy 10
Selling Shareholders 11
Plan of Distribution 12
Legal Matters 13
Experts 14
SEC Position on Indemnification 14
Where You Can Find More Information 14
Dealer Prospectus Delivery Obligation. All dealers that
effect transactions in these securities, whether or not
participating in this offering, may be required to deliver a
prospectus. This is in addition to the dealers' obligation
to deliver a prospectus when acting as underwriters and with
respect to their unsold allotments or subscriptions.
BriteSmile, Inc.
369,577(1)
SHARES
COMMON STOCK
____________________
PROSPECTUS
-------------------
January __, 2004
(1)To be adjusted effective January 30, 2004 to up to
923,959 shares, pursuant to 5 for 2 forward stock
split
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses to be incurred in
connection with the sale and distribution of the securities being registered
hereby, all of which will be borne by the Company. All amounts shown are
estimates except the Securities and Exchange Commission registration fee.
Filing Fee - Securities and Exchange Commission $ 979
Legal fees and expenses of the Company 45,000
Accounting fees and expenses 23,000
Blue Sky fees and expenses 10,000
Printing expenses 500
Miscellaneous expenses 5,000
----------
Total Expenses $ 84,479
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 16-10a-901 et. seq. of the Utah Business Corporation Act (the
"Utah Act"), together with Article 5 of the Bylaws of the Company, provide for
indemnification of the Company's directors, officers, employees, fiduciaries or
agents, subject to the Company's determination in each instance that
indemnification is in accordance with the standards set forth in the Utah Act
and in the Bylaws. The Company may purchase and maintain liability insurance on
behalf of a person who is or was a director, officer, employee, fiduciary, or
agent of the Company against liability asserted against or incurred by him or
her in that capacity or arising from his or her status as a director, officer,
employee, fiduciary, or agent, whether or not the Company would have power to
indemnify him or her against the same liability under the provisions of the
Bylaws.
ITEM 16. LIST OF EXHIBITS.
5 Opinion of Durham Jones & Pinegar, P.C. (filed herewith).
23.1 Consent of Durham Jones & Pinegar, P.C., included in Exhibit 5 filed
herewith.
23.2 Consent of Deloitte & Touche LLP (filed herewith).
23.3 Consent of Ernst & Young LLP (filed herewith).
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any derivation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the Registration Statement;
and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Company pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are incorporated by reference in this
Registration Statement.
(2) That, for the purposes of determining any liability under the
Securities Act, each post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the indemnification provisions described herein, or
otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement as amended to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Walnut Creek, State of California, on this 30th
day of January, 2004.
BriteSmile, Inc.
By: /s/ John Reed
---------------------------------
John Reed
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Anthony M. Pilaro Chairman of the Board of Directors January 29, 2004
-----------------------------------------------
Anthony M. Pilaro
/s/ John L. Reed Chief Executive Officer January 29, 2004
-----------------------------------------------
John L. Reed and Director (Principal Executive Officer)
/s/ John C. Dong Chief Financial Officer January 29, 2004
----------------------------------------------
John C. Dong (Principal Accounting Officer)
/s/ Bradford Peters Director January 28, 2004
----------------------------------------------
Bradford Peters
/s/ R. Eric Montgomery Director January 25, 2004
-----------------------------------------------
R. Eric Montgomery
/s/ Peter Schechter Director January 27, 2004
-----------------------------------------------
Peter Schechter
/s/ Harry Thompson Director January 30, 2004
---------------------------------------------------
Harry Thompson
/s/ Bruce Fleming Director January 29, 2004
-----------------------------------------------
Bruce Fleming
/s/ Tim Pierce Director January 29, 2004
-------------------------------------------------
L. Tim Pierce
/s/ Gerald Poch Director January 30, 2004
-------------------------------------------------
Gerald Poch
EXHIBIT INDEX
5 Opinion of Durham Jones & Pinegar, P.C.(filed herewith).
23.1 Consent of Durham Jones & Pinegar, P.C., included in Exhibit 5 filed
herewith.
23.2 Consent of Deloitte & Touche LLP (filed herewith).
23.3 Consent of Ernst & Young LLP (filed herewith).