Exhibit 10.2


Execution Version


CONTRIBUTION AGREEMENT


BY AND BETWEEN


BRITESMILE, INC.


AND


BRITESMILE SPAS, LLC


DATED AS OF


JANUARY 13, 2006











TABLE OF CONTENTS

	
   
 	
   
 	
   
 	
  
Page
  
	
   
 	
   
 	
   
 	
  


  
	
  
ARTICLE 1.   DEFINITIONS
  	
  
2
  
	
   
  	
  
1.1
  	
  
“Action”
  	
  
2
  
	
  
 
  	
  
1.2
  	
  
“Affiliate”
  	
  
2
  
	
  
 
  	
  
1.3
  	
  
“Agreement”
  	
  
2
  
	
  
 
  	
  
1.4
  	
  
“Associated   Center Business”
  	
  
2
  
	
  
 
  	
  
1.5
  	
  
“Assignment   of Contracts”
  	
  
2
  
	
  
 
  	
  
1.6
  	
  
“Assumption   Agreement”
  	
  
2
  
	
   
  	
  
1.7
  	
  
“BSML”
  	
  
2
  
	
  
 
  	
  
1.8
  	
  
“Consents”
  	
  
2
  
	
  
 
  	
  
1.9
  	
  
“Contribution”
  	
  
2
  
	
  
 
  	
  
1.10
  	
  
“Contribution   Date”
  	
  
2
  
	
  
 
  	
  
1.11
  	
  
“Contributed   Assets”
  	
  
2
  
	
  
 
  	
  
1.12
  	
  
“Contributed   Employees”
  	
  
2
  
	
   
  	
  
1.13
  	
  
“Contribution   Liabilities”
  	
  
2
  
	
  
 
  	
  
1.14
  	
  
“Excluded   Assets”
  	
  
3
  
	
  
 
  	
  
1.15
  	
  
“Governmental   Authority”
  	
  
3
  
	
  
 
  	
  
1.16
  	
  
“Information”
  	
  
3
  
	
  
 
  	
  
1.17
  	
  
“Instrument   of Assignment”
  	
  
3
  
	
  
 
  	
  
1.18
  	
  
“Liabilities”
  	
  
3
  
	
   
  	
  
1.19
  	
  
“Person”
  	
  
3
  
	
  
 
  	
  
1.20
  	
  
“PTO”
  	
  
3
  
	
  
 
  	
  
1.21
  	
  
“Securities”
  	
  
3
  
	
  
 
  	
  
1.22
  	
  
“Spa   Centers”
  	
  
3
  
	
  
 
  	
  
1.23
  	
  
“Spas”
  	
  
3
  
	
  
 
  	
  
1.24
  	
  
“Spa   Business”
  	
  
3
  
	
   
  	
  
1.25
  	
  
“Thai Spa”
  	
  
3
  
	
  
 
  	
  
 
  	
  
 
  	
   
 
	
  
ARTICLE 2.   THE CONTRIBUTION
  	
  
4
  
	
  
 
  	
  
2.1
  	
  
Contribution   of Assets and Assumption of Liabilities
  	
  
4
  
	
  
 
  	
  
2.2
  	
  
Consideration   for Contribution of Assets
  	
  
5
  
	
  
 
  	
  
2.3
  	
  
Termination   of Other Agreements
  	
  
5
  
	
   
  	
  
2.4
  	
  
Contributions   Not Effected On or Prior to the Contribution Date
  	
  
5
  
	
  
 
  	
  
2.5
  	
  
Disclaimer   of Representations and Warranties
  	
  
5
  
	
  
 
  	
  
2.6
  	
  
Spa License   Agreement
  	
  
6
  
	
  
 
  	
  
 
  	
  
 
  	
   
 
	
  
ARTICLE 3.   CLOSING MATTERS
  	
  
7
  
	
  
 
  	
  
3.1
  	
  
Closing
  	
  
7
  
	
   
  	
  
3.2
  	
  
Execution of   Instruments of Conveyance
  	
  
7
  
	
  
 
  	
  
3.3
  	
  
Conditions   Precedent to the Contribution
  	
  
7
  




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ARTICLE 4.   EMPLOYEE MATTERS
  	
  
7
  
	
  
 
  	
  
4.1
  	
  
Contributed   Employees
  	
  
7
  
	
  
 
  	
  
4.2
  	
  
Benefits
  	
  
8
  
	
   
  	
  
4.3
  	
  
Severance
  	
  
8
  
	
  
 
  	
  
4.4
  	
  
Paid Time   Off
  	
  
8
  
	
  
 
  	
  
 
  	
  
 
  	
   
 
	
  
ARTICLE 5.   MUTUAL RELEASE
  	
  
8
  
	
  
 
  	
  
5.1
  	
  
Release of   Claims
  	
  
8
  
	
  
 
  	
  
 
  	
  
 
  	
   
 
	
  
ARTICLE 6.   MISCELLANEOUS
  	
  
9
  
	
   
  	
  
6.1
  	
  
Further   Assurances
  	
  
9
  
	
  
 
  	
  
6.2
  	
  
Survival
  	
  
10
  
	
  
 
  	
  
6.3
  	
  
Counterparts;   Entire Agreement
  	
  
10
  
	
  
 
  	
  
6.4
  	
  
Governing   Law
  	
  
10
  
	
  
 
  	
  
6.5
  	
  
Assignability
  	
  
10
  
	
  
 
  	
  
6.6
  	
  
Notices
  	
  
10
  
	
   
  	
  
6.7
  	
  
No Third   Party Beneficiaries
  	
  
11
  
	
  
 
  	
  
6.8
  	
  
Severability
  	
  
11
  
	
  
 
  	
  
6.9
  	
  
Publicity
  	
  
11
  
	
  
 
  	
  
6.10
  	
  
Headings
  	
  
11
  
	
  
 
  	
  
6.11
  	
  
Survival of   Covenants
  	
  
11
  
	
  
 
  	
  
6.12
  	
  
Waivers of   Default
  	
  
11
  
	
   
  	
  
6.13
  	
  
Amendments
  	
  
12
  
	
  
 
  	
  
6.14
  	
  
Interpretation
  	
  
12
  




SCHEDULE INDEX

	
   
 	
  
Schedule 1
  	
  
 
  	
  
Contributed   Assets
  
	
   
 	
  
Schedule 2
  	
  
 
  	
  
Excluded   Assets
  
	
   
 	
  
Schedule 3
  	
  
 
  	
  
Contributed   Liabilities
  
	
   
 	
  Schedule 4
  	
  
 
  	
  
Contributed   Employees
  




EXHIBIT INDEX

	
   
 	
  
Exhibit A
  	
  
 
  	
  
Assignment   of Contracts
  
	
   
 	
  
Exhibit B
  	
  
 
  	
  
Assumption   Agreement
  
	
   
 	
  
Exhibit C
  	
  
 
  	
  
Instrument   of Assignment
  
	
   
 	
  
Exhibit D
  	
  
 
  	
  
Corporate   Severance Policy
  



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CONTRIBUTION AGREEMENT

	
  
 
  	
  
                    THIS   CONTRIBUTION AGREEMENT (including all Exhibits and   Schedules hereto, the “Agreement”),   dated as of January 13, 2006, is by and between BriteSmile, Inc., a Utah   corporation (“BSML”),   and BRITESMILE SPAS, LLC, a Delaware limited liability company (“Spas”).  Capitalized terms used herein and not   otherwise defined shall have the respective meanings assigned to them in   Article 1 hereof.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
                    WHEREAS,   BSML is currently engaged, among other things, in the business (1) of owning   or operating dedicated centers (the “Spa Centers”), in retail locations, in   which the dental services provided or authorized to be provided are limited   to providing tooth whitening, orthodontics, veneers, x-rays, cleaning and   prophys to consumers and (2) selling in such dedicated centers and in other   retail channels not including professional dental offices teeth whitening   products, including its BriteSmile-to-Go pen, toothpaste, mouthwash and gum   products, directly and through third party retail establishments ((1) and (2)   being referred to collectively as, the “Spa Business”);
  
	
   
  	
  
 
  
	
  
 
  	
  
                    WHEREAS,   BSML is also engaged in, among other things, offering teeth-whitening   products and systems through existing independent dental offices worldwide,   known as BriteSmile Professional Teeth Whitening Associated Centers (the “Associated Center Business”);
  
	
  
 
  	
  
 
  
	
  
 
  	
  
                    WHEREAS,   Spas was formed in December 2005 to engage in and operate the Spa Business in   connection with the transactions contemplated by the Limited Liability   Company Membership Purchase Agreement, dated as of the date hereof (the “Purchase Agreement”),   by and between BSML and Dental Spas, LLC (the “Buyer”) and in contemplation thereof,   has entered into a License Agreement, dated as of December 30, 2005, by and   among BSML, certain of its Affiliates and Spas (the “Spa License”)   pursuant to which BSML and such Affiliates have licensed certain intellectual   property and related rights to Spas;
  
	
  
 
  	
  
 
  
	
  
 
  	
  
                    WHEREAS,   in exchange for 100% of the membership interests of Spas (the “Securities”), the Board of Directors of   BSML has determined that it is in the best interests of BSML to contribute   certain assets to Spas that are used by BSML in the operation of the Spa   Business and the Manager of Spas has determined that it is in the best   interests of Spas to cause Spas to assume certain liabilities that are   related to such assets and to the operation and continued operation of the   Spa Business, all as more fully described in and, in each case, subject to   the terms and conditions in this Agreement (collectively, the “Contribution”); and
  
	
   
  	
  
 
  
	
  
 
  	
  
                    WHEREAS,   it is appropriate and desirable to set forth the principal transactions   required to effect the Contribution and implement certain other agreements   that will govern matters relating to the Contribution and the relationship of   BSML and Spas following the Contribution;
  













	
  
 
  	
  
                    NOW,   THEREFORE, in consideration of   the mutual covenants and agreements hereinafter set forth, and for other good   and valuable consideration, the receipt and sufficiency of which are hereby   acknowledged, the parties intending to be legally bound, agree as follows:
  





ARTICLE 1.
 DEFINITIONS

	
  
 
  	
  
                    For   the purpose of this Agreement the following terms shall have the following   meanings:
  
	
   
  	
  
 
  
	
  
 
  	
  
          1.1     “Action”   means any demand, action, suit, counter suit, arbitration, inquiry,   proceeding, or investigation by or before any federal, state, local, foreign,   or international Governmental Authority or any arbitration or mediation   tribunal.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          1.2     “Affiliate”   of any Person means a Person that controls, is controlled by, or is under   common control with such Person.  As   used herein, “control” means the possession, directly or indirectly, of the   power to direct or cause the direction of the management and policies of such   entity, whether through ownership of voting securities or other interests, by   contract or otherwise.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          1.3     “Agreement”   shall have the meaning set forth in the Preamble.
  
	
  
 
  	
  
 
  
	
   
  	
  
          1.4     “Associated   Center Business” shall have the meaning set forth in   the Recitals.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          1.5     “Assignment   of Contracts” means the Assignment of Contracts by   and between Spas and BSML in the form attached hereto as Exhibit A.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          1.6     “Assumption   Agreement” means the Assumption Agreement by and   between Spas and BSML in the form attached hereto as Exhibit B.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          1.7     “BSML”   shall have the meaning set forth in the Preamble.
  
	
  
 
  	
  
 
  
	
   
  	
  
          1.8     “Consents”   means any consents, waivers or approvals from, or notification requirements   to, any third Person or Governmental Authority.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          1.9     “Contribution”   shall have the meaning set forth in the Recitals.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          1.10   “Contribution   Date” shall have the meaning set forth in Section   3.1.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          1.11   “Contributed   Assets” means the assets listed on Schedule 1 hereto; provided that the   “Contributed Assets” shall not include any assets constituting an Excluded   Asset.
  
	
  
 
  	
  
 
  
	
   
  	
  
          1.12   “Contributed   Employees” shall have the meaning set forth in   Section 4.1.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          1.13   “Contribution   Liabilities” shall have the meaning set forth in   Section 3.1.
  




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          1.14   “Excluded   Assets” means the assets listed on Schedule 2 hereto and any and all assets   that are expressly contemplated by this Agreement or any Ancillary Agreement   (or the Schedules or Exhibits hereto or thereto) as assets to be retained by   BSML.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          1.15   “Governmental   Authority” shall mean any federal, state, local,   foreign, or international court, government, department, commission, board,   bureau, agency, official, or other regulatory, administrative, or   governmental authority.
  
	
   
  	
  
 
  
	
  
 
  	
  
          1.16   “Information”   means information, whether or not patentable or copyrightable, in written,   oral, electronic or other tangible or intangible forms, stored in any medium,   including studies, reports, records, books, contracts, instruments, surveys,   discoveries, ideas, concepts, know-how, techniques, designs, specifications,   drawings, blueprints, diagrams, models, prototypes, samples, flow charts,   data, computer data, disks, diskettes, tapes, computer programs or other   software, marketing plans, customer names, communications by or to attorneys   (including attorney-client privileged communications), memos and other   materials prepared by attorneys or under their direction (including attorney   work product), and other technical, financial, employee or business   information or data but in no event shall be deemed to include any patents,   trademarks,
service marks, trade names, Internet domain names, copyrights,   proprietary technology, trade secrets, know-how or other similar rights (or any   applications and registrations relating to the foregoing) of BSML or its   Affiliates which are not Contributed Assets.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          1.17   “Instrument   of Assignment” means the Instrument of Assignment by   BSML in favor of Spas in the form attached hereto as Exhibit C.
  
	
  
 
  	
  
 
  
	
   
  	
  
          1.18   “Liabilities”   means with respect to any Person, any liability or obligation of such Person   of any kind, character or description, whether known or unknown, absolute or   contingent, accrued or unaccrued, disputed or undisputed, liquidated or   unliquidated, secured or unsecured, joint or several, due or to become due,   vested or unvested, executory, determined, determinable or otherwise, and   whether or not the same is required to be accrued on the financial statements   of such Person.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          1.19   “Person”   means an individual, partnership, corporation (including a business trust),   joint stock company, trust, unincorporated association, joint venture,   limited liability company or other entity, or a government or any political   subdivision or agency thereof.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          1.20   “PTO”   shall have the meaning set forth in Section 4.4.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          1.21   “Securities”   shall have the meaning set forth in the Recitals.
  
	
   
  	
  
 
  
	
  
 
  	
  
          1.22   “Spa   Centers” shall have the meaning set forth in the   Recitals.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          1.23   “Spas”   shall have the meaning set forth in the Preamble.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          1.24   “Spa   Business” shall have the meaning   set forth in the Recitals.
  
	  
	  

	  
	           1.25   “Thai Spa” means BriteSmile Whitening Spa (Thailand) Limited in which BSML has an equity interest, subject to certain first refusal rights on the transfer of such interest.






3










ARTICLE 2.
 THE CONTRIBUTION

	
  
 
  	
  
          2.1     Contribution   of Assets and Assumption of Liabilities.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
                    (a)     Contribution   by BSML.  On and subject to the terms   of this Agreement, BSML hereby agrees to, and to cause its applicable   Affiliates to, on the Contribution Date, assign, contribute, transfer, sell,   convey, and deliver to Spas, and Spas hereby agrees to accept from BSML and   such Affiliates, all of BSML’s and such Affiliates’ respective right, title,   and interest in and to the Contributed Assets, so that neither BSML nor its   Affiliates retain any right, title or interest in or to the Contributed   Assets.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
                    (b)     Assumption   by Spas.  On and subject to the terms   of this Agreement, BSML hereby agrees to, and to cause its applicable   Affiliates to, assign, transfer and delegate to Spas on the Contribution Date,   and in partial consideration of BSML’s obligations under this Agreement, Spas   hereby agrees to assume on the Contribution Date, and agrees to faithfully   perform and fulfill, all of the following Liabilities (the “Contributed Liabilities”),   in accordance with their respective terms:
  
	
   
  	
  
 
  
	
  
 
  	
  
                                        (i)     the   Liabilities listed on Schedule 3   hereto;
  
	
  
 
  	
  
 
  
	
  
 
  	
  
                                        (ii)    all   Liabilities relating to the operation of the Contributed Assets, including,   but not limited to, any assumed contract included in the Contributed Assets   other than Liabilities arising prior to the Contribution Date which have not   been disclosed to the Buyer;
  
	
  
 
  	
  
 
  
	
  
 
  	
  
                                        (iii)   all   Liabilities of the Spa Centers disclosed to the Buyer outstanding on the   Contribution Date;
  
	
   
  	
  
 
  
	
  
 
  	
  
                                        (iv)   all   Liabilities relating to the Contributed Employees arising from and after the   Contribution Date;
  
	
  
 
  	
  
 
  
	
  
 
  	
  
                                        (v)     all   liabilities relating to severance obligations of and PTO to be honored by   Spas pursuant to Section 4.3 and Section 4.4, respectively; and
  
	
  
 
  	
  
 
  
	
  
 
  	
  
                                        (vi)   any   and all other Liabilities that are expressly contemplated by this Agreement,   the Assignment of Contracts, the Assumption Agreement or the Instrument of   Assignment (the Assignment of Contracts, the Assumption Agreement and the   Instrument of Assignment being referred to hereinafter collectively as, the “Ancillary Agreements”)   (or the Schedules or Exhibits hereto or thereto) as Liabilities to be assumed   by Spas.
  



4










	
  
 
  	
  
                    Notwithstanding   anything to the contrary herein, in no event shall Spas be liable for any   incentive compensation or other similar payments owing to any P.C. Dentist   (as such term is defined in the Purchase Agreement) arising prior to the   Contribution Date.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          2.2     Consideration   for Contribution of Assets.  Upon the terms and subject to the   conditions contained herein, as additional consideration for the transfer of   the Contributed Assets by BSML and its Affiliates to Spas, Spas shall issue   to BSML the Securities, and Spas shall assume the Contributed Liabilities   pursuant to Section 2.1(b) above.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          2.3     Termination   of Other Agreements.  Except with respect to this Agreement, the Ancillary Agreements   (and agreements expressly contemplated herein or therein to survive by their   terms) and the Spa License, BSML and Spas hereby terminate any and all   written or oral agreements, arrangements, commitments or understandings,   between or among them, effective as of the Contribution Date; and each party   shall, at the reasonable request of any other party, take, or cause to be   taken, such other actions as may be necessary to effect the foregoing.  The parties acknowledge that nothing   contained herein (including the schedules hereto) shall be deemed to   contradict, supersede or otherwise affect, modify or alter the provisions, rights   or obligations of BSML or its Affiliates or of Spas under the Spa License.
  
	
   
  	
  
 
  
	
  
 
  	
  
          2.4     Contributions   Not Effected On or Prior to the Contribution Date.  In the event   that at any time after the Contribution Date any party hereto shall receive   or otherwise possess an asset that is allocated to the other Person pursuant   to this Agreement or any Ancillary Agreement, such party shall promptly   transfer or cause to be contributed, such asset to such Person so entitled   hereunder. Prior to such transfer, the Person receiving or possessing such asset shall hold such asset in trust for such other Person (at the expense of the party entitled thereto). In the event that any assignment or assumption of Liabilities contemplated by this ARTICLE 2 has not been consummated effective as of the Contribution Date, the party retaining such Liabilities shall thereafter hold such Liabilities for the account of the party assuming such Liability or to whom such Liability is to be assigned pursuant hereto, and in each such case shall take such other actions as may be reasonably required in order
to place the parties, insofar as reasonably possible, in the same position as would have existed had such asset been contributed, or such Liability been assigned or assumed as contemplated hereby. As and when any such asset or Liability becomes transferable, assignable or assumable, as the case may be, such transfer, assignment, or assumption shall be effected forthwith.
  
	
  
 
  	
  
 
  
	
   
  	
  
          2.5     Disclaimer   of Representations and Warranties.  Each of BSML and Spas understands and   agrees that, except as expressly set forth herein or in any Ancillary   Agreement, no party to this Agreement, any Ancillary Agreement or any other   agreement or document contemplated by this Agreement (with the exception of   the Purchase Agreement, which contains certain representations, warranties   and covenants of BSML and the Buyer, and the Spa License), any Ancillary   Agreement or otherwise, is representing or warranting in any way as to the   assets, businesses, technologies or Liabilities contributed or assumed as   contemplated hereby or thereby, including, without limitation, any   representations or warranties relating to (a) any Consents or approvals   required in connection therewith, (b) the value of any of the foregoing,
  




5










	
  
 
  	
  
(c) the   freedom from any liens, security interests, encumbrances or restrictions on   transfer, (d) the absence of any defenses or right of setoff or freedom from   counterclaim with respect to any claim or other asset, or (e) the legal   sufficiency of any assignment, document or instrument delivered hereunder to   convey title to any asset or thing of value upon the execution, delivery and   filing hereof or thereof.  Except as   may expressly be set forth herein or in any Ancillary Agreement, all such   assets are being contributed on an “as is,” “where is” basis (provided that the absence of the   representations and warranties from the parties shall not negate the   allocation of Liabilities under this Agreement and shall have no effect on   any manufacturer’s, seller’s or other third party warranty that is intended   to be contributed with such assets) and, subject to the parties’ obligations   under
Section 2.4, Spas shall bear the economic and legal risks that   any conveyance shall prove to be insufficient to vest in the transferee good   and marketable title, free and clear of any liens, security interests,   encumbrances or restrictions on transfer.
  
	
   
  	
  
 
  
	
  
 
  	
  
          2.6     Spa   License Agreement.
  





	
  
 
  	
  
 
  	
  
(a)
  	
  
In this   Section 2.6, Licensed Know-How, Licensed Products, LICENSORS and Retail Field   shall all have the definitions given to them in the Spa License.  For the avoidance of doubt, upon entering   into the Spa License it was the mutual intent of BSML and Spas that:
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
(i)
  	
  
Spas has the   right to sell the BriteSmile-to-Go pen and the BriteSmile Whitening   Toothpaste in Spas and in the Retail Field without any limitation on the   ability of the purchasers of such products to use them and without triggering   any right for BSML to terminate the Spa License;
  
	
   
  	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
(ii)
  	
  
The   deficiency correction procedure described in Section 3.2 of the Spa License   is intended to apply to all patents, trademarks, copyrights or know-how owned   by or licensed to LICENSORS as of the date of the Spa License; and
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
 
  	
  
 
  	
  
(iii)
  	
  
The grant of   the right to sell mouthwash in the Retail Field does not trigger any right of   BSML to terminate the Spa License.
  
	
  
 
  	
  
 
  	
  
 
  	
  
 
  	
  
 
  
	
   
  	
  
 
  	
  
(b)
  	
  
Nothing   contained in this Section 2.6 shall constitute any representation or warranty   of either party hereto or create any liability of any nature whatsoever of   BSML or its Affiliates to Spas or its Affiliates, including the Buyer and its   Affiliates.
  




6











ARTICLE 3.
 CLOSING MATTERS

	
  
 
  	
  
          3.1     Closing.  Upon the terms and subject to the   conditions of this Agreement, the consummation of the Contribution and other   transactions (the “Closing”)   contemplated herein shall take place at the offices of Skadden, Arps, Slate,   Meagher & Flom, LLP, Four Embarcadero Center, San Francisco, California,   simultaneously with the closing of the transactions contemplated by the   Purchase Agreement (the date on which Closing is effective, the “Contribution Date”),   unless the parties hereto otherwise agree.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          3.2     Execution   of Instruments of Conveyance.  In furtherance of the contribution,   assignment and conveyance of the Contributed Assets and the assumption of the   Contributed Liabilities set forth in Sections 2.1(a) and 2.1(b),   at the Closing, (a) BSML shall execute and deliver, and shall cause any   applicable Affiliate to execute and deliver, such Bills of Sale, certificates   of title, Assignments of Contracts and other instruments of transfer,   conveyance and assignment, if any, as and to the extent reasonably necessary   to evidence the transfer, conveyance and assignment of all of BSML’s right,   title and interest in and to the Contributed Assets to Spas and (b) Spas   shall execute and deliver, to BSML and its Affiliates, such assumptions of   contracts and other instruments of assumption, if any, as and to the extent   reasonably
necessary to evidence the valid and effective assumption of the   Contributed Liabilities by Spas, including the Assumption Agreement.
  
	
   
  	
  
 
  
	
  
 
  	
  
          3.3     Conditions   Precedent to the Contribution.  The parties’ obligations hereunder are   subject to the following conditions that must be satisfied prior to   consummation of the Contribution:
  
	
  
 
  	
  
 
  
	
  
 
  	
  
                    (a)     Spas’   operating agreement shall reflect the issuance to and ownership of the   Securities by BSML, and such operating agreement shall have been delivered to   BSML.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
                    (b)     There   shall be no actual or threatened Action before any court or other   Governmental Agency seeking to restrain or invalidate this Agreement, the   Contribution, or any other transaction contemplated by this Agreement.
  




ARTICLE 4.
 EMPLOYEE MATTERS

	
  
 
  	
  
          4.1     Contributed   Employees.    Spas shall offer employment to the employees of BSML set forth on Schedule 4 hereto effective as of the   Contribution Date.  Such personnel who   accept such employment (the “Contributed Employees”) will be employed by Spas with   the same per annum salaries, or hourly rates of pay under which such   Contributed Employees were employed by BSML immediately prior to the   Contribution Date, but nothing herein shall be deemed to create an employment   contract between Spas, the Buyer and/or any of their respective Affiliates   and any such Contributed Employee.    Contributed Employees shall be employees at will (unless a written   employment agreement to the contrary has been entered into by Spas with such   Contributed Employee or expressly assumed in writing by Spas) and nothing   express or
implied in this Agreement will obligate Spas to provide continued   employment to any such Contributed Employee for any specific period of time   following the Contribution Date.
  




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          4.2     Benefits.  Subject to Sections 4.3 and 4.4,   from and after the Contribution Date, the Contributed Employees shall be   entitled to participate in all benefits and welfare plans and programs   provided by Spas to its employees generally subject, however, to the   generally applicable eligibility and other provisions of the various plans   and programs in effect from time to time.    From and after the Contribution Date, the Contributed Employees shall   cease to participate in the benefits and welfare plans and programs of BSML,   except as otherwise required by such plans or programs; provided that Spas shall honor the terms   of BSML’s severance policy as provided in Section 4.3 below.
  
	
   
  	
  
 
  
	
  
 
  	
  
          4.3     Severance.  In the event that Spas determines that it   is advisable to terminate the employment of any Contributed Employee, Spas   shall pay the applicable severance benefits to such Contributed Employee   consistent with BSML’s corporate severance policy in effect on the   Contribution Date, a description of which is attached hereto as Exhibit D.  All severance costs arising from the termination of any of   Contributed Employees shall be the exclusive responsibility of Spas and shall   be deemed to be an Assumed Liability hereunder; however, Spas shall in no   case assume any liabilities of BSML or other previous employer under any   retention agreements executed by such previous employer with any Contributed   Employees.  The execution of this   Agreement and the consummation by the parties of the Contribution shall not,   in and of
itself, be deemed to be a termination of a Contributed Employee’s   employment in a manner that would give rise to any severance obligation of   BSML.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          4.4     Paid   Time Off.    All “paid time off” balances (“PTO”) accrued on the books of BSML with   respect to each Contributed Employee through the day prior to Contribution   Date shall be honored by Spas from and after the Contribution Date.
  
	
  
 
  	
  
 
  
	
  ARTICLE 5.
  
	
  
MUTUAL RELEASE
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          5.1     Release   of Claims.
  
	
  
 
  	
  
 
  
	
  
                              (a)     Except   as provided in Section 5.1(c), to the extent permitted by law,   effective as of the Contribution Date, Spas does hereby, for itself and its   successors and assigns, release and forever discharge BSML and each of its   Affiliates, their respective successors and assigns, and all Persons who at   any time prior to the Contribution Date have been shareholders, directors,   officers, agents or employees of BSML or any of its Affiliates (in each case,   in their respective capacities as such), and their respective heirs,   executors, administrators, successors and assigns, from any and all   Liabilities whatsoever, whether at law or in equity (including any right of   contribution), whether arising under any contract or agreement, by
operation   of law or otherwise, existing or arising from any facts or events occurring   or failing to occur or alleged to have occurred or to have failed to occur or   any conditions existing or alleged to have existed on or before the   Contribution Date, including in connection with the transactions and all   other activities to implement the Contribution.
  
	
   
  
	
  
                             (b)     Except   as provided in Section 5.1(c), to the extent permitted by law,   effective as of the Contribution Date, BSML does hereby, for itself and its   successors and assigns,  release and   forever discharge Spas and each of its Affiliates (including the Buyer and   its Affiliates), their respective successors and assigns, and all Persons who   at any time prior to the Contribution Date have been directors, officers,   agents or employees of Spas (in each case, in their respective capacities as   such), and their respective heirs, executors, administrators, successors and   assigns, from any and all Liabilities whatsoever, whether at law or in equity   (including any right of contribution), whether arising under any contract or   agreement, by
operation of law or otherwise, existing or arising from any   facts or events occurring or failing to occur or alleged to have occurred or   to have failed to occur or any conditions existing or alleged to have existed   on or before the Contribution Date, including in connection with the   transactions and all other activities to implement the Contribution.
  




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                             (c)     Nothing contained in Sections 5.1(a) or (b) shall negate the allocation of assets or Liabilities under this Agreement or otherwise impair any right of BSML (including, without limitation, on behalf of BSML’s Affiliates) or Spas (including, without limitation, on behalf of Spas’ Affiliates, including the Buyer) to enforce this Agreement or any Ancillary Agreement, in each case in accordance with its terms.  Without limiting the generality of the preceding sentence, nothing contained in Sections 5.1(a) and (b) shall release BSML or Spas, as applicable, from (i) any Liability provided in or resulting from this Agreement or any Ancillary Agreement or (ii) any Liability, contingent or otherwise, assumed, contributed or
assigned to such Person in accordance with, or any other Liability of any Person under, this Agreement or any Ancillary Agreement.


                             (d)     Spas shall not make any claim or demand or commence any Action asserting any claim or demand, including any claim of contribution or indemnification, against BSML or any of its Affiliates or any other Person released pursuant to Section 5.1(a), with respect to any Liabilities released pursuant to Section 5.1(a), except as permitted by Section 5.1(c).  BSML shall not make any claim or demand or commence any Action asserting any claim or demand, including any claim of contribution or indemnification, against Spas or any of its Affiliates or any other Person released pursuant to Section 5.1(b), with respect to any Liabilities released pursuant to Section 5.1(b), except as permitted by Section 5.1(c).


ARTICLE 6.
 MISCELLANEOUS

	
  
 
  	
  
          6.1     Further   Assurances.    In addition to the actions specifically provided for elsewhere in this   Agreement, each of the parties hereto shall use its commercially reasonable   efforts, prior to, on and after the Contribution Date, to take, or cause to   be taken, all actions, and to do, or cause to be done, all things, reasonably   necessary, proper or advisable under applicable laws, regulations and   agreements to consummate and make effective the transactions contemplated by   this Agreement and the Ancillary Agreements.    Without limiting the foregoing, prior to, on and after the   Contribution Date, each party hereto shall cooperate with the other parties,   and without any further consideration, but at the expense of the requesting   party, to execute and deliver, or use its commercially reasonable efforts to   cause to be executed and delivered,
all instruments, including instruments of   conveyance, assignment and transfer, and to make all filings with, and to   obtain all Consents, approvals or authorizations of, any Governmental   Authority or any other Person under any permit, license, agreement, indenture   or other instrument, and to take all such other actions as such party may   reasonably be requested to take by any other party hereto from time to time,   consistent with the terms of this Agreement and the Ancillary Agreements, in   order to effectuate the provisions and purposes of this Agreement and the   Ancillary Agreements and the transfers of the Contributed Assets and the   assignment and assumption of the Contributed Liabilities and the other   transactions contemplated hereby and thereby.
  



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          6.2     Survival.  The provisions hereof shall remain in full   force and effect and shall survive the Contribution Date, except to the   extent otherwise agreed by the parties in writing.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          6.3     Counterparts;   Entire Agreement.
  
	
  
 
  	
  
 
  
	
  
                             (a)     This   Agreement and each Ancillary Agreement may be executed in two or more   counterparts, all of which shall be considered one and the same agreement,   and shall become effective when one or more counterparts have been signed by   each of the parties and delivered to the other party.
  
	
  
 
  	
  
 
  
	
  
                             (b)     This   Agreement, the Ancillary Agreements and the Exhibits, Schedules and   appendices hereto and thereto contain the entire agreement between the   parties with respect to the subject matter hereof, supersede all previous   agreements, negotiations, discussions, writings, understandings, commitments   and conversations with respect to such subject matter.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          6.4     Governing   Law.  This   Agreement, except as expressly provided herein, and, unless expressly   provided therein, each Ancillary Agreement, shall be governed by and   construed and interpreted in accordance with the laws of the State of   California, irrespective of the choice of laws principles of the State of   California as to all matters, including matters of validity, construction,   effect, enforceability, performance and remedies.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          6.5     Assignability.  Except as set forth in any Ancillary   Agreement, this Agreement and each Ancillary Agreement shall be binding upon   and inure to the benefit of the parties hereto and thereto, respectively, and   their respective successors and assigns; provided,   however, that no party hereto   or thereto may assign its respective rights or delegate its respective   obligations under this Agreement or any Ancillary Agreement without the   express prior written consent of the other parties hereto or thereto.
  
	
   
  	
  
 
  
	
  
 
  	
  
          6.6     Notices.  All notices or other communications under   this Agreement or any Ancillary Agreement shall be in writing and shall be   deemed to be duly given when (a) delivered in person or (b) deposited in the   United States mail or private express mail, postage prepaid, addressed as   follows:
  





	
  
 
  	
  
If to BSML,   to:
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          BriteSmile,   Inc.
  
	
  
 
  	
  
          460   North Wiget Lane
  
	
  
 
  	
  
          Walnut   Creek, California  94598
  
	
   
  	
  
          Fax:   (925) 941-6266
  
	
  
 
  	
  
          Attention:  Nhat Ngo
  




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If to Spas,   to:
  
	  
	  

	
  
 
  	
  
BriteSmile   Spas, LLC
  
	
  
 
  	
  
460 North   Wiget Lane
  
	
  
 
  	
  
Walnut   Creek, California  94598
  
	
  
 
  	
  
Fax: (925)   941-6266
  
	
  
 
  	
  
Attention:  Nhat Ngo
  





	
  
 
  	
  
                    Either   party may, by notice to the other party, change the address to which such   notices are to be given.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          6.7     No   Third Party Beneficiaries.  The provisions of this Agreement and each Ancillary Agreement   are solely for the benefit of the parties and are not intended to confer upon   any Person (including, without limitation, any Contributed Employee) except   the parties any rights or remedies hereunder, and there are no third party   beneficiaries of this Agreement or any Ancillary Agreement and neither this   Agreement nor any Ancillary Agreement shall provide any third Person with any   remedy, claim, liability, reimbursement, claim of action or other right in   excess of those existing without reference to this Agreement or any Ancillary   Agreement.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          6.8     Severability.  If any provision of this Agreement or any   Ancillary Agreement or the application thereof to any Person or circumstance   is determined by a court of competent jurisdiction to be invalid, void or   unenforceable, the remaining provisions hereof or thereof, or the application   of such provision to Persons or circumstances or in jurisdictions other than   those as to which it has been held invalid or unenforceable, shall remain in   full force and effect and shall in no way be affected, impaired or   invalidated thereby, so long as the economic or legal substance of the   transactions contemplated hereby or thereby, as the case may be, is not   affected in any manner adverse to any party.    Upon such determination, the parties shall negotiate in good faith in   an effort to agree upon such a suitable and equitable provision to effect the
original intent of the parties.
  
	
   
  	
  
 
  
	
  
 
  	
  
          6.9     Publicity.  Each of Spas and BSML shall consult with   each other prior to issuing any press releases or otherwise making public   statements with respect to the Contribution or any of the other transactions   contemplated hereby and prior to making any filings with any Governmental   Authority with respect thereto.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          6.10     Headings.  The article, section and paragraph   headings contained in this Agreement and in the Ancillary Agreements are for   reference purposes only and shall not affect in any way the meaning or   interpretation of this Agreement or any Ancillary Agreement.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          6.11     Survival   of Covenants.    Except as expressly set forth in any Ancillary Agreement, the   covenants, representations and warranties contained in this Agreement and   each Ancillary Agreement, and liability for the breach of any obligations   contained herein, shall survive the Contribution.
  
	
   
  	
  
 
  
	
  
 
  	
  
          6.12     Waivers   of Default.    Waiver by any party of any default by the other party of any provision   of this Agreement or any Ancillary Agreement shall not be deemed a waiver by   the waiving party of any subsequent or other default, nor shall it prejudice   the rights of the other party.
  



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          6.13     Amendments.  This Agreement and all Ancillary   Agreements, except to the extent as may otherwise be set forth therein, may   be amended by the written agreement of BSML and Spas.  No provisions of this Agreement or any   Ancillary Agreement shall be deemed waived, amended, supplemented or modified   by any party, unless such waiver, amendment, supplement or modification is in   writing and signed by the authorized representative of the party against whom   it is sought to enforce such waiver, amendment, supplement or modification.
  
	
  
 
  	
  
 
  
	
  
 
  	
  
          6.14     Interpretation. 
Words in the singular shall be held to include the plural and vice versa and
words of one gender shall be held to include the other genders as the context
requires.  The terms “hereof,”
“herein,” and “herewith” and
words of similar import shall, unless otherwise stated, be construed to refer to
this Agreement (or the applicable Ancillary Agreement) as a whole (including all
of the Schedules, Exhibits and appendices hereto and thereto) and not to any
particular provision of this Agreement (or such Ancillary Agreement). 
Article, Section, Exhibit, Schedule and Appendix references are to the Articles,
Sections, Exhibits, Schedules and Appendices to this Agreement (or the
applicable Ancillary Agreement) unless otherwise specified.  The word “including” and words of similar import when used in this
Agreement (or the applicable Ancillary Agreement) shall mean
“including, without limitation,” unless the context
otherwise requires or unless otherwise specified.  The word
“or” shall not be exclusive.
 
	  
	  

	  
	                        IN WITNESS WHEREOF, the patties have caused this CONTRIBUTION AGREEMENT to be executed by their duty authorized representatives on the date first written above.






	
  
 
  	
  
BRITESMILE, INC. 
  
	
  
 
  	
  
 
  
	
  
 
  	
  
By:
  	
  
/s/ ANTHONY   M. PILARO
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Name:
  	
  
Anthony M.   Pilaro
  
	
  
 
  	
  
Title:
  	
  
Chairman
  
	
   
  	
  
 
  	
  
 
  
	
  
 
  	
  
BRITESMILE SPAS, LLC
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By:
  	
  
BriteSmile,   Inc., its Manager
  
	
  
 
  	
  
 
  	
  
 
  
	
  
 
  	
  
By:
  	
  
/s/ NHAT H.   NGO
  
	
  
 
  	
  
 
  	
  


  
	
  
 
  	
  
Name:
  	
  
Nhat H. Ngo
  
	
   
  	
  Title:
  	
  Executive   Vice President
  




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