SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO/A
(Rule 13e-4)
(Amendment No. 1)
TENDER OFFER STATEMENT
UNDER
SECTION 14(d)(1) OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
BRITESMILE, INC. (NAME OF SUBJECT COMPANY (ISSUER) AND FILING PERSON (OFFEROR))
CERTAIN OPTIONS TO PURCHASE COMMON STOCK, PAR VALUE $0.001 PER SHARE,
(TITLE OF CLASS OF SECURITIES)
n/a*
(CUSIP NUMBER OF CLASS OF SECURITIES)
PETER P. HAUSBACK
EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND SECRETARY
BRITESMILE, INC.
490 NORTH WIGET LANE
WALNUT CREEK, CALIFORNIA 94598
(925) 941-6260
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND
COMMUNICATIONS ON BEHALF OF FILING PERSON)
COPY TO:
JEFFREY M. JONES, ESQ.
WAYNE D. SWAN, ESQ.
DURHAM JONES & PINEGAR
111 EAST BROADWAY, SUITE 900
SALT LAKE CITY, UTAH 84111
(801) 415-3000
AMOUNT PREVIOUSLY PAID: $591.03
FORM OR REGISTRATION NO: 5-41521
FILING PARTY: BriteSmile, Inc.
DATE INITIALLY FILED: August 20, 2002
[ ] Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[ ] third party tender offer subject to Rule 14d-1.
[X] issuer tender offer subject to Rule 13e-4.
[ ] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: [ ]
* There is no trading market or CUSIP Number for the options. The CUSIP
Number for the underlying Common Stock is 1104 15 10 6
INTRODUCTION
This Amendment No. 1 (the "Amendment") amends and supplements the
Tender Offer Statement on Schedule TO filed with the Securities and Exchange
Commission on August 20, 2002 (the "Schedule TO"), relating to the offer by
BriteSmile, Inc. ("BriteSmile") to exchange certain outstanding options to
purchase shares of BriteSmile Common Stock held by Eligible Optionholders
granted under the Amended and Restated 1997 Stock Option and Incentive Plan (the
"Option Plan") for new options to purchase shares of BriteSmile's Common Stock
upon the terms and subject to the conditions set forth in the Offer to Exchange,
dated August 20, 2002, a copy of which is atttached as Exhibit (a)(1) to the
Schedule TO, as the same has been amended by the Supplemental Memorandum from
John Reed to Eligible Optionholders, dated August 30, 2002, a copy of which is
attached as Exhibit (a)(10) to the Schedule TO, and in the following documents
attached as exhibits to the Schedule TO: the Memorandum from John Reed, Chief
Executive Officer , dated August 20, 2002, the Election Form, the Notice to
Change Election From Accept to Reject, and the Promise to Grant Stock Options.
Except as provided in this Amendment, this Amendment does not alter the
terms and conditions previously set forth in the offer. Capitalized terms used
and not defined in this Amendment have the meanings given to those terms in the
Schedule TO and its exhibits.
ITEM 2 SUBJECT COMPANY INFORMATION.
(b) Under the heading "The Offer" on page 15 of the Offer to Exchange, Section
1, paragraph 1 is amended to read in its entirety as follows:
You are an "Eligible Optionholder" if you:
o as of the date the Offer commences and the date on
which the tendered options are cancelled, are an
employee of BriteSmile or one of its subsidiaries; and
o hold options issued under the Option Plan.
ITEM 4 TERMS OF THE TRANSACTION.
(a) Section 4 ("Procedures for tendering options") of the Offer to
Exchange is hereby amended in the following particulars: The paragraph under the
heading on page 18, "Determination of Validity; Rejection of Options; Waiver of
Defects; No Obligation to Give Notice of Defects" is amended to read in its
entirety as follows:
We will determine, in our discretion, all questions as to the
form of documents and the validity, form, eligibility,
including time of receipt, and acceptance of any tender of
options. Our determination of these matters will be final and
binding on all parties. We reserve the right to reject any or
all tenders of options that we determine are not in
appropriate form or that we determine are unlawful to accept.
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Otherwise, we will accept properly and timely tendered options
that are not validly withdrawn. We also reserve the right to
waive any of the conditions of the Offer or any defect or
irregularity in any tender of any particular options or for
any particular optionholder. If we waive a condition of the
Offer with respect to any optionholder, we will waive the
condition as to all optionholders. No tender of options will
be deemed to have been properly made until all defects or
irregularities have been cured by the tendering optionholder
or waived by us. Neither we nor any other person is obligated
to give notice of any defects or irregularities in tenders,
nor will anyone incur any liability for failure to give any
notice. This is a one-time offer, and we will strictly enforce
the Offer period, subject only to an extension which we may
grant in our sole discretion.
Section 6 ("Acceptance of options for exchange and issuance of new
options") of the Offer to Exchange is hereby amended in the following
particulars: The last sentence of paragraph 1, page 19 of the Offer to Exchange,
under the heading, "Acceptance of options for exchange and issuance of new
options," is amended to read in its entirety as follows:
Promptly after the Expiration Date, we will issue to you a
Promise to Grant Stock Option(s), by which we will commit to
grant stock options to you on a date no earlier than March 24,
2003 covering the same number of shares as the options
cancelled pursuant to this Offer, provided that you have the
same Service Status on the date the grant is to be made as you
had on the Cancellation Date.
Section 7 ("Conditions of the Offer") of the Offer to Exchange is
amended by adding a new final paragraph to Section 7 reading as follows:
For purposes of this Section 7, the phrase "benefits of the
Offer to BriteSmile" shall mean the tax or accounting
treatment of the Offer to the Company, and the creation of
enhanced employee performance incentives for Eligible
Employees as a result of the potential for more favorable
option exercise prices for optionholders who elect to
participate in the Offer.
ITEM 12 EXHIBITS.
Item 12 is amended and supplemented as follows so as to add Exhibit
(a)(10) attached hereto:
(a)(1)* Offer to Exchange Certain Outstanding Options for New Options
dated August 20, 2002.
(2)* Election Form
(3)* Memorandum from John Reed, Chief Executive Officer, to
Employees dated August 20, 2002.
(4)* Notice to Change Election From Accept to Reject.
(5)* Form of Confirmation of Receipt of Election to Exchange
Options.
(6)* Form of Promise to Grant Stock Option(s).
(7) BriteSmile's Quarterly Report on Form 10-Q for the 13 weeks
ended June 29, 2002, filed with the SEC on August 12, 2002, is
incorporated herein by reference.
(8) BriteSmile's Annual Report on Form 10-K for the 52 weeks ended
December 29, 2001, filed with the SEC on April 10, 2002, as
amended by Form 10-K/A for the 52 weeks ended December 29,
2001 filed with the SEC on April 29, 2002, is incorporated
herein by reference.
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(9)* Press Release of the Company dated August 20, 2002.
(10) Supplemental Memorandum of John L. Reed, Chief Executive
Officer, to Eligible Optionholders, dated August 30, 2002.
(b) Not applicable.
(d)(1) Amended and Restated BriteSmile, Inc. 1997 Stock Option and
Incentive Plan (filed as Exhibit 10.10 to the BriteSmile
Annual Report on Form 10-K for the 52 weeks ended December 29,
2001, incorporated herein by reference).
(2) Form of BriteSmile, Inc. 1997 Stock Option and Incentive Plan
Master Stock Option Agreement (filed as Exhibit 10.12 to the
BriteSmile Annual Report on Form 10-K for the 52 weeks ended
December 29, 2001 and incorporated herein by reference).
(3) 1990 Stock Option Plan of the Company (filed as Exhibit 4(a)
to the Company's Registration Statement on Form S-8 filed with
the Commission on November 27, 1996 and incorporated herein by
reference).
(g) Not applicable.
(h) Not applicable.
ITEM 13 INFORMATION REQUIRED BY SCHEDULE 13E-3.
(a) Not applicable.
* Previously filed.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Amendment No. 1 to Schedule TO is
true, complete and correct.
BRITESMILE, INC.
By: /s/ John L. Reed
----------------------------
John L. Reed
Its: Chief Executive Officer
Date: August 30, 2002
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
(a)(10) Supplemental Memorandum of John L. Reed, Chief Executive Officer,
to Eligible Optionholders, dated August 30, 2002.