Amendment of Warrant Agreement Dated as of ______________, 2010
Exhibit
4.4
_______________
Amendment
of Warrant Agreement
Dated as
of ______________, 2010
_______________
THIS
AMENDMENT OF WARRANT AGREEMENT (“Amendment”), dated as of ______________, 2010,
between BioTime, Inc., a California corporation (the “Company”), and American
Stock Transfer & Trust Company (“Warrant Agent”), for the benefit of each
Holder, amends that certain Warrant Agreement dated December 9, 2003, as amended
by that certain Amendment of Warrant Agreement dated October 27, 2005 (the
“Agreement”).
The
Company proposes to permit Holders to exercise up to 3,000,000 Warrants, in the
aggregate, at a discounted exercise price of $1.70 per Warrant Share until 5:00
p.m. on _________, 2010.
In
consideration of the foregoing and for the purpose of defining the terms and
provisions of the Warrants and the respective rights and obligations thereunder
of the Company and each Holder, the Company agrees that the Agreement is amended
by as follows:
Section
1.
Definitions. Unless
otherwise defined in this Amendment, all capitalized terms have the meaning
ascribed to them in the Agreement.
(a) “Discount
Offer” means the Company’s offer to permit up to 3,000,000 Warrants to be
exercised by Holders at the Discount Offer Warrant Price during the Discount
Offer Period.
(b) "Discount
Offer Expiration Date" means __________, 2010 or such other date as the Company
may determine.
(c) "Discount
Offer Period" means the period commencing on _______, 2010 and ending at 5:00
p.m. New York time on the Discount Offer Expiration Date.
(d) “Discount
Offer Warrant Price” means $1.70 per Warrant Share.
(e) "Prospectus"
means the Company's prospectus, dated _________, 2010, pertaining to the
Warrants, as the same may from time to time be supplemented or
amended.
Section
2.
Discount
Offer. The following provisions shall apply with respect to
the exercise of Warrants during the Discount Offer Period only.
(a) Discount Offer Warrant
Price. Subject to any adjustments required by Section 10,
during the Discount Offer Period the Warrant Price shall be the Discount Offer
Warrant Price.
(b) Maximum Number of Warrant
Shares Issuable at Discount Warrant Price; Proration. During
the Discount Offer Period, Holders may exercise, in the aggregate, up to a total
of 3,000,000 Warrants to purchase, in the aggregate, up to 3,000,000 Warrant
Shares, at the Discount Offer Warrant Price. All exercises of the
Warrants at the Discount Offer Warrant Price will be subject to proration if
more than 3,000,000 Warrants are exercised in the Discount Offer. All
Warrants received by the Warrant Agent for exercise in the Discount Offer will
be held by the Warrant Agent until the Warrant Agent determines the total number
of Warrants received that have been exercised properly in the Discount Offer
Period. If the total number of Warrants that have been exercised
properly in the Discount Offer Period exceeds 3,000,000, the Warrant Agent will
allocate 3,000,000 Warrant Shares among the Holders who properly exercised
Warrants in the Discount Offer. Such allocation shall be made on a
pro rata basis, based upon the number of Warrants properly exercised by each
Holder and the total number of Warrants properly exercised by all Holders in the
Discount Offer. The Warrant Agent will deposit all checks and other
funds received by it for the payment of the Discount Offer Warrant Price in the
Discount Offer into a segregated interest-bearing account of the Company pending
proration and distribution of Warrant Shares. The interest earned on
the account will belong to the Company. Any funds received by the
Warrant Agent from a Holder in excess of the aggregate Discount Offer Warrant
Price payable for the Warrants Shares allocated to the Holder in the Discount
Offer will be returned to the Holder without interest or
deduction.
(c) Notice of Guaranteed
Delivery. A Warrant will be accepted for exercise during the Discount
Offer Period if prior to 5:00 p.m. New York City time on the Discount Offer
Expiration Date the Warrant Agent has received a notice of guaranteed delivery
by facsimile (telecopy) or otherwise from a bank, trust company, or New York
Stock Exchange member guaranteeing delivery of (i) payment of the full Discount
Offer Warrant Price for the Warrant Shares to be purchased through exercise of
the Warrants, and (ii) a properly completed and executed Warrant
Certificate. The Warrant Agent will not honor a notice of guaranteed
delivery unless a properly completed and executed Warrant Certificate and full
payment for the Warrant Shares is received by the Warrant Agent by the close of
business on the third business day after the Discount Offer Expiration
Date.
(d) Number of Warrants Deemed
Exercised. If during the Discount Offer Period a Holder does
not indicate the number of Warrant Shares being purchased through the exercise
of Warrants, or does not deliver full payment of the Discount Offer Warrant
Price for the number of Warrant Shares indicated as being purchased through the
exercise of Warrants, then such Holder will be deemed to have exercised Warrants
to purchase the maximum number of Warrant Shares determined by dividing (x) the
total Discount Offer Warrant Price so paid, by (y) the Discount Offer Warrant
Price per Warrant Share; provided, that such number shall not exceed the maximum
number of Warrant Shares that may be purchased through the exercise of the
Warrant Certificate delivered to the Warrant Agent.
(e) Payment by Wire
Transfer. The Warrant Agent may accept payment by wire
transfer if arrangements satisfactory to the Warrant Agent and the Company are
made by the Holder.
(f)
Termination;
Extension; Modification of Discount Offer. The Company may, in
its sole discretion, upon notice to the Warrant Agent: (a) terminate the
Discount Offer; (b) extend the Discount Offer Expiration Date to a later date;
or (c) amend or modify the terms of the Discount Offer.
Section
3. Delivery of Prospectus and
Other Documents. The Warrant Agent shall deliver a Prospectus,
a letter from the President of the Company to the Holders, a return envelope
addressed to the Warrant Agent, and such other documents and information as the
Company may provide concerning the Discount Offer. The Warrant Agent
shall also provide copies of the Prospectus and other documents prepared by the
Company to Holders and other persons upon request.
(a) The
Company will provide the Warrant Agent with a sufficient number of Prospectuses
as the Warrant Agent may require.
2
(b) The
Company has provided to the Warrant Agent the following documents that the
Warrant Agent shall deliver to brokers, dealers, commercial banks, trust
companies and other nominee holders of Warrants: (i) a letter to Brokers,
Dealers, Commercial Banks, Trust Companies and Other Nominees; (ii) a letter to
the clients of nominee holders described in clause (i); and (iii) a Notice of
Guaranteed Delivery.
Section
4. Notices; Principal
Office. Any notice pursuant to the Agreement, as amended
hereby, by the Company or by any Holder to the Warrant Agent, or by the Warrant
Agent or by any Holder to the Company, shall be in writing and shall be
delivered in person, or mailed first class, postage prepaid (a) to the Company,
at its office, Attention: Secretary or (b) to the Warrant Agent, at its offices
as designated at the time the Warrant Agent is appointed. The address
of the principal office of the Company is 0000 Xxxxxx Xxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxx 00000. Any notice mailed pursuant to the
Agreement, as amended hereby, by the Company or the Warrant Agent to the Holders
shall be in writing and shall be mailed first class, postage prepaid, or
otherwise delivered, to such Holders at their respective addresses on the books
of the Company or the Warrant Agent, as the case may be. Each party
hereto and any Holder may from time to time change the address to which notices
to it are to be delivered or mailed hereunder by notice to the other
party.
Section
5. Effect of
Amendment. Except as amended hereby, all provisions of the
Agreement shall remain in full force and effect.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed, all as of the day and year first above written.
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BIOTIME,
INC.
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By:
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Name:
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Title:
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Attest:
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By:
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Name:
Xxxxxx Xxxxxx
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Title:
Secretary
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AMERICAN
STOCK TRANSFER & TRUST COMPANY
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By:
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Name:
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Title:
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