REGISTRATION RIGHTS AGREEMENT
Exhibit
10.45
This
Registration Rights Agreement (“Agreement”) is entered into as of May 13, 2009
by and between BioTime, Inc., a California corporation (the “Company”), the
undersigned, and each other person who enters into a Stock and Warrant Purchase
Agreement with the Company pursuant to which the Company may issue and sell to
each purchaser up to 2,200,000 common shares, no par value, and warrants to
purchase common shares in “Units” consisting of one common share and one warrant
each.
NOW,
THEREFORE, the parties agree as follows:
1. Certain
Definitions. As used in this Agreement the following terms
shall have the following respective meanings:
(a)
“Act” shall
mean the Securities Act of 1933, as amended, or any similar federal statute and
the rules and regulations of the Commission thereunder, all as the same shall be
in effect at the time.
(b) “Commission” shall
mean the Securities and Exchange Commission or any other federal agency at the
time administering the Act.
(c) “Holder” shall mean
each person who originally purchased Registrable Securities from the Company
pursuant to a Stock and Warrant Purchase Agreement and his/its transferees as
permitted by Section 1.6.
(d) The
terms “register,” “registered” and
“registration”
refer to a registration effected by preparing and filing a registration
statement in compliance with the Act, and the declaration or ordering of the
effectiveness of such registration statement.
(e) “Registrable
Securities” means the Shares, Warrants, and Warrant
Shares. Any securities that are (i) distributed as a dividend or
otherwise with respect to Registrable Securities, (ii) issuable upon the
exercise or conversion of Registrable Securities, or (iii) issued or issuable in
exchange for or through conversion of Registrable Securities pursuant to a
recapitalization, reorganization, merger, consolidation or other transaction
shall also constitute Registrable Securities.
(f) “Shares” means up to
4,400,000 common shares, no par value, of the Company issued by the Company as
part of the Units pursuant to the Stock and Warrant Purchase
Agreements.
(g) “Stock and Warrant Purchase
Agreements” means a series of Stock and Warrant Purchase Agreements of
like tenor pursuant to which the Company agreed to issue and sell up to an
aggregate of 2,200,000 Units to each purchaser.
(h) “Units” means units
consisting of one Share and one Warrant each sold by the Company to certain
purchasers pursuant to the Stock and Warrant Purchase Agreements.
(i) “Warrants” shall
include the original Warrants issued to the original purchasers as part of Units
pursuant to Stock and Warrant Purchase Agreements, any Warrant or Warrants
issued by the Company upon the transfer of all or any portion of a Warrant, and
any Warrant issued by the Company to a Holder upon the partial exercise of any
Warrant and evidencing the portion of the Warrant that remains
unexercised.
(j) “Warrant Shares” means
the common shares, no par value, and any other securities issued or issuable by
the Company upon exercise of the Warrants.
2. Registration
Rights.
(a) Filing of Registration
Statement With Respect to Shares and Warrants. The Company
agrees, at its expense, to file a registration statement with the Commission to
register the Shares, Warrants and Warrant Shares under the Act, and to take such
other actions as may be necessary to allow the Warrants to be exercised and to
allow the Warrants and, upon issuance, the Warrant Shares to be freely tradable,
without restrictions under the Act. Such registration statement shall
be filed as follows: (i) after July 14, 2009 with respect to a
registration statement that includes the Warrants and Warrant Shares, but not
the Shares, and (ii) following a written request for registration from any
Holder(s) of not less than 25% of the Shares after May 15, 2010, with respect to
a registration statement that includes Shares. The Company will use
commercially reasonable efforts to cause the registration statement to become
effective as promptly as practicable after filing. The Company will
make all filings required under applicable state securities or “blue sky” laws
so that the Registrable Securities being registered shall be registered or
qualified for sale under the securities or blue sky laws of New York,
California, and such jurisdictions as shall be reasonably appropriate for
distribution of the Shares, Warrants, and Warrant Shares covered by the
applicable registration statement. Each registration statement shall
be a “shelf” registration pursuant to Rule 415 (or similar rule that may be
adopted by the Securities and Exchange Commission) and shall provide that each
Holder’s plan of distribution is to offer and sell Shares, Warrants, and Warrant
Shares, as applicable, from time to time at market prices or prices related to
market prices; provided, that a registration statement may be amended to provide
for an underwritten public offering of the Shares, Warrants, and Warrant Shares
included in the registration statement if the Holders submit to the Company a
written notice to such effect with a copy of the applicable underwriting
documents and such other relevant information concerning the offering as the
Company may request. The Company shall use commercially reasonable
efforts to keep each such registration statement effective until the earlier of
(i) completion of the distribution or distributions being made pursuant thereto,
and (ii) such time as the Holders are eligible to sell their Shares, Warrants
and Warrant Shares under Rule 144 under the Act without application of the
manner of sale and volume limitations under Rule 144. The Company
shall utilize Form S-3 if it qualifies for such use. The Company will
furnish to the Holders such numbers of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the Act and such
other related documents as
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the
Holders may reasonably request in order to effect the exercise of their Warrants
and the sale of their Shares, Warrants and Warrant Shares.
(b) “Piggy-Back Registration” of
Shares. If, at any time after May 15, 2010, the Company
proposes to register any of its securities under the Act (otherwise than
pursuant to (i) this Agreement, (ii) a registration statement pertaining to
subscription rights distributed to Company shareholders, and (iii) a
registration on a Form S-8 or any other form if such form cannot be used for
registration of the Registrable Securities pursuant to its terms), and the
Shares shall not then be eligible for sale by the Holder(s) under Rule 144 under
the Act, the Company shall, as promptly as practicable, give written notice to
the Holders. The Company shall include in such registration statement
the Shares proposed to be sold by the Holders. Notwithstanding the
foregoing, if the offering of the Company’s securities is to be made through
underwriters, the Company shall not be required to include Shares if and to the
extent that the managing underwriter reasonably believes in good faith that such
inclusion would materially adversely affect such offering, unless the Holders
agree to postpone their sales until 10 days after the distribution is
completed. The provisions of Section 2(e) shall apply to any such
registration statement if the offering is made through
underwriters.
(c) Costs of
Registration. The Company shall pay the cost of the
registration statements filed pursuant to this Agreement, including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws (including counsel’s fees and expenses in
connection therewith), printing expenses, messenger and delivery expenses,
internal expenses of the Company, listing fees and expenses, and fees and
expenses of the Company’s counsel, independent accountants and other persons
retained or employed by the Company. Holders shall pay any
underwriters discounts applicable to the Registrable Securities.
(d) Other
Securities. Any registration statement filed pursuant to this
Agreement may include other securities of the Company which are held by other
persons who, by virtue of agreements with the Company or permission given, are
entitled to include their securities in such registration.
(e) Underwriting. If
Holders wish to include Shares in a registration under Section 2(b), or if
Holders holding not less than 50% of the Shares or Warrants intend to distribute
Shares, Warrants, or Warrant Shares by means of an underwriting to be registered
under Section 2(a), they shall so advise the Company prior to the effective date
of the registration statement filed by the Company, and the Company shall
include such information in a written notice to all Holders. All
Holders shall be entitled to participate in such underwriting, and the right of
any Holder to registration pursuant to this Agreement then shall be conditioned
upon such Holder’s participation in such underwriting and the inclusion of such
Holder’s Shares, Warrants, and Warrant Shares in the underwriting to the extent
provided herein.
The
Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by a
majority in interest of the
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Holders
and reasonably acceptable to the Company, in the case of a registration under
Section 2(a), or selected by the Company is its sole discretion, in the case of
a registration under Section 2(b). Notwithstanding any other
provision of this Agreement, if the managing underwriter advises the Holders and
the Company in writing that marketing factors require a limitation of the number
of shares to be underwritten, then, the number of Registrable Securities that
may be included in the registration and underwriting shall be allocated among
all Holders in proportion, as nearly as practicable, to the respective amounts
of Registrable Securities held by such Holders and any other holders of
securities having rights to include their securities in the registration, at the
time of filing the registration statement. No Registrable Securities
excluded from the underwriting by reason of the managing underwriter’s marketing
limitation shall be included in such registration.
If any
Holder or any other holder of securities eligible for inclusion in the
registration disapproves of the terms of the underwriting, such person may elect
to withdraw from the underwriting and registration by written notice to the
Company and the managing underwriter. The Registrable Securities
and/or other securities so withdrawn shall also be withdrawn from the
registration; provided, however, that, if by the withdrawal of such Registrable
Securities or other securities a greater number of Registrable Securities held
by other Holders or other securities held by persons having rights to
participate in such registration may be included in such registration (up to the
maximum of any limitation imposed by the underwriters), then the Company shall
offer to all Holders and other persons who have included Registrable Securities
or other securities in the registration the right to include additional
Registrable Securities or other securities in the same proportion used in
determining the underwriter limitation.
Notwithstanding
any other provision of this Agreement, if the registration is one under Section
2(b), and the managing underwriter determines that marketing factors require a
limitation of the amount of securities to be underwritten, the Company may
exclude Registrable Securities and other securities held by other holders of
registration rights without any exclusion of securities offered by
Company. In the event of any exclusion of securities held by holders
of registration rights, the amount of securities that may be included in the
registration and underwriting shall be allocated among all Holders of
Registrable Securities and other holders of securities entitled to include
securities in such registration in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities and other securities that the
Company has agreed to register held by each such person.
(f) Waiver. Notwithstanding
any other provision of this Agreement the rights of the Holders under Section
2(b) may be waived by a majority-in-interest of the Holders (based upon their
holdings of Registrable Securities, with or without notice to the Holders
generally).
(g) Limitation on Company
Liability. The Company shall have no obligation to make any
cash settlement or payment to any Holder, or to issue any additional Shares,
Warrants, or other securities to any Holder, in the event that the Company is
unable to effect or
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maintain
in effect the registration of any Registrable Securities under the Act or any
state securities law despite the Company’s commercially reasonable efforts so to
do.
3. Indemnification.
(a) The
Company will indemnify, defend and hold harmless each Holder, each of its
officers, directors and partners, and each person who controls such Holder
within the meaning of the Act, and each underwriter, if any, and each person who
controls any underwriter within the meaning of the Act from and against all
expenses, claims, losses, damages and liabilities (or actions commenced or
threatened in respect thereof), including any of the foregoing incurred in
settlement of any litigation commenced or threatened (other than a settlement
effected without the consent of the Company, which consent will not unreasonably
be withheld), to the extent such expenses, claims, losses, damages and
liabilities (or actions commenced or threatened in respect thereof) arise out of
or are based on (i) any untrue statement (or alleged untrue statement) of a
material fact contained in any registration statement or prospectus, or any
amendment or supplement thereto, offering Registrable Securities, or any
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or (ii) any violation, by the Company, of any
rule or regulation promulgated under the Act and applicable to the Company and
relating to any registration of Registrable Securities by the Company under the
Act. The Company will reimburse each such Holder, each of its
officers, directors and partners, and each person controlling such Holder, each
such underwriter and each such person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action;
provided that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement or omission based upon written information furnished to the
Company by such Holder or underwriter or controlling person specifically for use
in connection with the registration or offering of Registrable
Securities.
(b) Each
Holder will, if Registrable Securities held by such Holder are included in a
registration under the Act or under any state securities law, indemnify, defend
and hold harmless the Company, each of its directors and officers, and each
independent accountant of the Company, each underwriter, if any, of the
Company’s securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of the Act, and each
other such Holder, and each of the officers, directors and partners and each
person who controls such other Holder within the meaning of the Act, from and
against all claims, losses, damages and liabilities (or actions commenced or
threatened in respect thereof) arising out of or based on (i) any untrue
statement (or alleged untrue statement) of a material fact contained in any such
registration statement or prospectus, or any amendment or supplement offering
Registrable Securities, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
or (ii) any violation, by such Holder, of any rule or regulation promulgated
under the Act applicable to such Holder and relating to action
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or
inaction required of such Holder in connection with any registration of
Registrable Securities. Such Holder will reimburse the Company, such
other Holders, such directors, officers, partners, persons, accounting firms,
underwriters, or control persons for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability, or action, in each case to the extent, but only to the
extent, that such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement or prospectus in
reliance upon and in conformity with written information furnished to the
Company or any underwriter by such Holder specifically for use therein;
provided, however, that the obligations of such Holders under this Section 3(b)
shall be limited to an amount equal to the net proceeds to each such Holder from
the sale of Registrable Securities pursuant to such registration.
(c) Each
party entitled to indemnification under this Section 3 (the “Indemnified Party”)
shall give notice to the party required to provide indemnification (the
“Indemnifying Party”) promptly after such Indemnified Party has actual knowledge
of any claim as to which indemnity may be sought, and shall permit the
Indemnifying Party to assume the defense of any such claim or any litigation
resulting therefrom; provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or any litigation resulting therefrom, shall
be approved by the Indemnified Party (whose approval shall not unreasonably be
withheld). The Indemnified Party may participate in such defense at
the Indemnified Party’s own expense. The failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party
of its obligations under this Section 3 except to the extent such failure is
prejudicial to the ability of the Indemnifying Party to defend such action, but
such failure shall not relieve the Indemnifying Party of any liability that the
Indemnifying Party may have to any Indemnified Party otherwise than under this
Section 3. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
4. Information by
Holder. Each Holder of Registrable Securities included in any
registration shall furnish to the Company and to each underwriter, upon the
Company’s request, such information regarding such Holder and the distribution
proposed by such Holder as shall be required in connection with any registration
of Registrable Securities.
5. Rule 144
Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may permit the sale of the
Registrable Securities to the public without registration, the Company agrees
to:
(a) Use commercially
reasonable efforts to file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Exchange Act of
1934, as amended (the “Exchange Act”);
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(b) So long as a Holder
owns any Registrable Securities, furnish to the Holder forthwith upon request a
written statement by the Company as to its compliance with the of the Exchange
Act, a copy of the most recent annual or quarterly report of the Company, and
such other reports and documents so filed by the Company under the Exchange Act
as a Holder may reasonably request in availing itself of any rule or regulation
of the Commission allowing a Holder to sell any such securities without
registration.
6. Transfer of Registration
Rights. The rights to cause the Company to register securities
under this Agreement may be assigned: (a) to an “affiliate” (defined
as an entity that controls, is controlled by, or under common control with the
transferor); (b) to one or more of its general partners, limited partners, or
members if the transferor is a partnership or limited liability company; or (c)
to any other transferee or assignee of an aggregate of twenty-five percent (25%)
or more of the transferor’s Registrable Securities; provided, that as a
condition to any transfer of such rights the transferor must give the Company
written notice at the time or within a reasonable time after said transfer,
stating its desire to transfer such rights, the name and address of the
transferee or assignee, and identifying the securities with respect to which
such registration rights are being assigned; provided, that nothing in this
Section shall be construed in any way to limit any restriction or condition on
transfer of any Registrable Securities imposed by any other agreement between a
Holder and the Company, the Act, any rule or regulation promulgated under the
Act, or any state securities or blue sky law or any rule or regulation
thereunder.
7. Computation of Certain
Percentages. Where any provision of this Agreement provides
for the exercise, waive, or amendment of any rights upon the action of Holders
of a specified percentage of Registrable Securities, such percentage shall be
determined based upon the aggregate number of Registrable Securities issued and
outstanding.
8. Miscellaneous.
(a) Governing
Law. This Agreement shall be governed in all respects by the
laws of the State of California, as applied to contracts entered into in
California between California residents and to be performed entirely within
California.
(b) Successors and
Assigns. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties
hereto.
(c) Entire Agreement;
Amendment. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated orally, but only by a written
instrument signed by the Company and Holders of a majority of the Registrable
Securities which have not been resold to the public.
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(d) Notices,
etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first-class mail,
postage prepaid, or otherwise delivered by hand, by messenger or next business
day air freight services, addressed (i) if to a Holder at such Holder’s address
set forth on the signature page hereto, or at such other address as such Holder
shall have furnished to the Company in writing, or (ii) if to the Company, at
0000 Xxxxxx Xxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000;
attention: Chief Financial Officer, or at such other address as the
Company shall have furnished to the Holders in writing.
(e) Delays or
Omissions. No delay or omission to exercise any right, power
or remedy accruing to any party, upon any breach or default of any other party
under this Agreement, shall impair any such right, power or remedy, nor shall it
be construed to be a waiver of or acquiescence in any such breach or default or
any similar breach or default thereafter occurring. A waiver of any
single breach or default shall not be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character of any breach or default under this
Agreement, or any waiver of any provisions or conditions of this Agreement, must
be made in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, either under this Agreement, or
by law or otherwise afforded to any party, shall be cumulative and not
alternative.
(f) Severability. In
case any provision of this Agreement shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
(g) Titles and
Subtitles. The titles of the sections and subparagraphs of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
(h) Counterparts. This
Agreement may be executed in any number of counterparts (including by separate
counterpart signature pages), each of which shall be an original, but all of
which together shall constitute one instrument. Any counterpart of
this Agreement may be signed by electronic or facsimile, and such electronic or
facsimile signature shall be deemed an original signature.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
THE
COMPANY:
BIOTIME,
INC.
By
_________________________________
Xxxxxx Xxxxxxx,
Senior Vice President and
Chief Operating Officer
By
_________________________________
Xxxxxx Xxxxxx, Secretary
HOLDER:
________________________________________
Xxxxxx
Xxxxxxxxx
Address
for Notice: 00
Xxxxxx Xxxx
Xxx Xxxx,
XX 00000
FAX: (000) 000-0000
Broadwood
Partners, L.P.
By: Broadwood
Capital, Inc., General Partner
By: _______________________________
Xxxx X. Xxxxxxxx,
President
Address
for Notice: 000
Xxxxx Xxxxxx
0xx
Xxxxx
Xxx Xxxx, XX 00000
FAX: (000)
000-0000
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