STOCK AND WARRANT PURCHASE AGREEMENT BIOTIME, INC. 2,200,000 Units Each Unit Consisting of One Common Share and One Common Share Purchase Warrant Price: $1.8182 per Unit READ THIS AGREEMENT CAREFULLY BEFORE YOU INVEST
Exhibit
10.44
BIOTIME,
INC.
2,200,000
Units
Each
Unit Consisting of One Common Share
and
One
Common Share Purchase Warrant
Price:
$1.8182 per Unit
READ THIS AGREEMENT
CAREFULLY BEFORE YOU INVEST
The
Units (each consisting of one common share, no par value (“Shares”), and one
Common Share Purchase Warrant (“Warrant”)) and the common shares issuable upon
the exercise of the Warrants (“Warrant Shares”) have not been registered under
the Securities Act of 1933, as amended, or applicable state securities laws and
may not be offered for sale, sold, transferred, pledged or hypothecated to any
person, and the Warrants may not be exercised, in the absence of an effective
registration statement covering such securities (or an exemption from such
registration) and an opinion of counsel satisfactory to BioTime, Inc. to the
effect that such transfer or exercise complies with applicable securities
laws.
PURCHASE
AGREEMENT
This Agreement is entered into by
Broadwood Partners, L.P. (“Purchaser”) and BioTime, Inc., a California
corporation (the “Company).
1. Purchase and Sale of
Units.
(a) Purchaser
hereby irrevocably agrees to purchase, and the Company agrees to sell to
Purchaser, One Million One Hundred Thousand (1,100,000) Units at the price of
$1.8182 per Unit. Each Unit consists of one common share, no par
value (“Share”), of the Company and one Common Share Purchase Warrant
(“Warrant”) entitling the holder to purchase, on the terms and conditions set
forth in the Warrant Agreement governing the Warrant, one common share, no par
value of the Company (“Warrant Share”) for $2.00 per Warrant Share (the “Warrant
Price”), subject to adjustment as provided in the Warrant
Agreement. The Shares, Warrants, and Warrant Shares are collectively
referred to in this Agreement as the “Securities.”
(b) This
Agreement will become an irrevocable obligation of Purchaser to purchase the
number of Units specified in paragraph (a) of this Section 1, at the price of
$1.8182 per Unit, when a copy of this Agreement, signed by Purchaser, is
countersigned by the Company. Purchaser shall pay the purchase price of the
Units by wire transfer to such account of the Company as the Company may
specify. If this Agreement is rejected or not accepted for any reason
by the Company, all sums paid by the Purchaser will be promptly returned,
without interest or deduction.
(c) If
Purchaser purchases the 1,100,000 Units as provided in paragraph (a) of this
Section, by paying the purchase price in full, Purchaser shall have the right,
but not the obligation, to purchase from the Company, on or before July 14,
2009, an additional One Million One Hundred Thousand (1,100,000) Units at the
price of $1.8182 per Unit. Purchaser may exercise the right to
purchase such additional Units by giving the Company written notice of the
exercise of such right (“Exercise Notice”), and by paying the purchase price of
such Units in fully by wire transfer to an account specified by the Company,
which wire transfer shall be made not later than the first business day after
the Purchaser gives the Company the Exercise Notice and the Company provides
Purchaser with instructions for wire transfer of the purchase
price. By giving the Exercise Notice specified in this paragraph,
Purchaser shall irrevocably agree to purchase 1,100,000 Units at the price of
$1.8182 per Unit.
2. Registration
Rights. Concurrently with the execution and delivery of this
Agreement, Purchaser and the Company are entering into a Registration Rights
Agreement pursuant to which the Company is agreeing to registered the Securities
for sale under the Securities Act of 1933, as amended (the “Act”).
Purchase
Agreement
3. Investment
Representations. Purchaser represents and warrants to the
Company that:
(a) Purchaser
has made such investigation of the Company as Purchaser deemed appropriate for
determining to acquire (and thereby make an investment in) the
Securities. In making such investigation, Purchaser has had access to
such financial and other information concerning the Company as Purchaser
requested. Purchaser has received and read copies of the form of
Warrant Agreement, including the form of the Warrant, the form of Registration
Rights Agreement, the Company’s annual report on Form 10-K for the fiscal year
ended December 31, 2008, a draft copy of the Company’s quarterly report on Form
10-Q for the fiscal quarter and three months ended March 23, 2009, and a copy of
each of the Company’s Current Reports on Form 8-K filed with the Securities and
Exchange Commission after March 31, 2009, which together with this Agreement
constitute the “Disclosure Documents.” Purchaser is relying on the
information provided in the Disclosure Documents or otherwise communicated to
Purchaser in writing by the Company. Purchaser has not relied on any
statement or representations inconsistent with those contained in the Disclosure
Documents. Purchaser has had a reasonable opportunity to ask
questions of and receive answers from the executive officers of the Company
concerning the Company, and to obtain additional information (including all
exhibits listed in the Disclosure Documents), to the extent possessed or
obtainable by the Company without unreasonable effort or expense, necessary to
verify the information in the Disclosure Documents. All such
questions have been answered to Purchaser’s satisfaction.
(b) Purchaser
understands that the Securities are being offered and sold without registration
under the Act, or qualification under the California Corporate Securities Law of
1968, or under the laws of any other states, in reliance upon the exemptions
from such registration and qualification requirements for non-public
offerings. Purchaser acknowledges and understands that the
availability of the aforesaid exemptions depends in part upon the accuracy of
certain of the representations, declarations and warranties made by Purchaser,
and the information provided by Purchaser, in this
Agreement, Purchaser is making such representations, declarations and
warranties, and is providing such information, with the intent that the same may
be relied upon by the Company and its officers and directors in determining
Purchaser’s suitability to acquire the Securities. Purchaser
understands and acknowledges that no federal, state or other agency has reviewed
or endorsed the offering of the Securities or made any finding or determination
as to the fairness of the offering or completeness of the information in the
Disclosure Documents.
(c) Purchaser
understands that the Securities may not be offered, sold, or transferred in any
manner, and the Warrants may not be exercised, unless subsequently registered
under the Act, or unless there is an exemption from such registration available
for such offer, sale or transfer.
(d) Purchaser
(or if Purchaser is not a natural person, the officers and directors making the
decision on behalf of Purchaser to purchase the Securities) has such knowledge
and experience in financial and business matters to enable Purchaser to utilize
the information
Purchase
Agreement
2
contained
in the Disclosure Documents or otherwise made available to Purchaser to evaluate
the merits and risks of an investment in the Securities and to make an informed
investment decision.
(e) Purchaser
is acquiring the Securities solely for Purchaser’s own account and for
investment purposes, and not with a view to, or for sale in connection with, any
distribution of the Securities other than pursuant to an effective registration
statement under the Act or unless there is an exemption from such registration
available for such offer, sale or transfer, such as SEC Rule 144.
(f) Purchaser
is an “accredited investor,” as such term is defined in Regulation D promulgated
under the Act.
(g) Matters
discussed in the Disclosure Documents include matters that may be considered
“forward looking” statements within the meaning of Section 27(a) of the Act and
Section 21(e) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), which statements Purchaser acknowledges and agrees are not guarantees of
future performance and involve a number of risks and uncertainties, and with
respect to which the Company makes no representations or
warranties. Purchaser understands that the level of disclosure
provided by the Company is less than that which would be provided in a
securities offering registered under the Act in reliance on the sophistication
and investment experience of Purchaser.
(h) Purchaser
understands that (1) the draft Form 10-Q provided to Purchaser by the Company as
part of the Disclosure Documents contains confidential financial information and
other confidential information about the Company that has not yet been publicly
disclosed by the Company, and therefore may be deemed material non-public
information, (2) the Company is providing Purchaser the draft Form 10-Q in
confidence, solely to satisfy its disclosure obligations under the Act in
connection with the offer and sale of the Securities to Purchaser pursuant to
this Agreement, and (3) until such time as the Company files its Form 10-Q with
the Securities and Exchange Commission, Purchaser shall not (A) disclose to any
other person any of the information contained in the draft Form 10-Q that has
not previously been disclosed in a report filed by the Company under the
Exchange Act, or (B) purchase or sell any common shares or warrants of the
Company other than purchases of the Units pursuant to this
Agreement.
4. Accredited Investor
Qualification. Purchaser qualifies as an “accredited investor”
under Regulation D in the following manner. (Please check or initial
all that apply
to verify that you qualify as an “accredited investor.”)
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_____
(a)
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Purchaser
is a natural person whose net worth, or joint net worth with spouse, at
the date of purchase exceeds $1,000,000 (including the value of home, home
furnishings, and automobiles).
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_____
(b)
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Purchaser
is a natural person whose individual
gross income (excluding that of spouse) exceeded $200,000 in each of the
past two calendar years, and who
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Purchase
Agreement
3
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reasonably
expects individual gross income exceeding $200,000 in the current calendar
year.
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_____
(c)
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Purchaser
is a natural person whose joint gross
income with spouse exceeded $300,000 in each of the past two calendar
years, and who reasonably expects joint gross income with spouse exceeding
$300,000 in the current calendar
year.
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_____
(d)
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Purchaser
is a bank, savings and loan association, broker/dealer, insurance company,
investment company, pension plan or other entity defined in Rule 501(a)(1)
of Regulation D as promulgated under the Securities Act of 1933 by the
Securities and Exchange Commission.
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_____
(e)
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Purchaser
is a trust, and the trustee is a bank, savings and loan association, or
other institutional investor as defined in Rule 501(a)(1) of Regulation D
as promulgated under the Securities Act of 1933 by the Securities and
Exchange Commission.
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_____
(f)
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Purchaser
is a private business development company as defined in section 202(a)(22)
of the Investment Advisers Act of
1940.
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_____
(g)
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Purchaser
is a trust, and the grantor (i) has the power to revoke the trust at any
time and regain title to the trust assets; and (ii) meets the requirements
of items (a) (b), or (c) above.
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X (h)
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Purchaser
is a tax-exempt organization described in Section 501(c) (3) of the
Internal Revenue Code, or a corporation, Massachusetts or similar business
trust, or partnership, not formed for the specific purpose of acquiring
Securities with total assets in excess of
$5,000,000.
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_____
(i)
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The
Purchaser is a trust with total assets in excess of $5,000,000, not formed
for the specific purpose of acquiring Securities, whose purchase is
directed by a person who has such knowledge and experience in financial
and business matters that he is capable of evaluating the merits and risks
of an investment in the Securities.
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_____
(j)
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The
Purchaser is an entity in which all of the equity owners meet the
requirements of at least one of items (a) through (i)
above.
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5. Entities. If
Purchaser is a corporation, partnership, limited liability company, trust or
other entity, Purchaser represents and warrants that: (a) it is authorized and
otherwise duly qualified to purchase and hold the Securities; (b) it has its
principal place of business as set forth below; and (c) it has not been formed
or reorganized for the specific purpose of acquiring Securities.
Purchase
Agreement
4
6. Miscellaneous.
(a) This
Agreement shall be governed by, interpreted, construed and enforced in
accordance with the laws of the State of California, as such laws are applied to
contracts by and among residents of California, and which are to be performed
wholly within California.
(b) The
representations and warranties set forth herein shall survive the sale of
Securities to Purchaser.
(c) Neither
this Agreement nor any provisions hereof shall be modified, discharged or
terminated except by an instrument in writing signed by the party against whom
any waiver, change, discharge or termination is sought.
(d) Any
notice, demand or other communication that any party hereto may be required, or
may elect, to give shall be sufficiently given if (i) deposited, postage
prepaid, in the United States mail addressed to such address as may be specified
under this Agreement, (ii) delivered personally at such address, (iii) delivered
to such address by air courier delivery service, or (iv) delivered by electronic
mail (email) to such electronic mail address as may be specified under this
Agreement. The address for notice to the Company is: BioTime, Inc.,
0000 Xxxxxx Xxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000; Attention: Xxxxxx
Xxxxxxxx, Chief Financial Officer; email;
xxxxxxxxx@xxxxxxxxxxx.xxx. The address for notice of Purchaser is
shown in Section 7. Either party may change its address for notice by
giving the other party notice of a new address in the manner provided in this
Agreement. Any notice sent by mail shall be deemed given three days
after being deposited in the United States mail, postage paid, and addressed as
provided in this Agreement.
(e) This
Agreement may be executed through the use of separate signature pages or in any
number of counterparts, and each of such counterparts shall, for all purposes,
constitute one agreement binding on all the parties, notwithstanding that all
parties are not signatories to the same counterpart.
(f) Except
as otherwise provided herein, the Agreement shall be binding upon and inure to
the benefit of the parties and their heirs, executors, administrators,
successors, legal representatives and assigns. If the undersigned is
more than one person, the obligation of the undersigned shall be joint and
several and the agreements, representations, warranties and acknowledgments
herein contained shall be deemed to be made by and be binding upon each such
person and his heirs, executors, administrators and successors.
(g) This
instrument contains the entire agreement of the parties, and there are no
representations, covenants or other agreements except for those stated or
referred to herein.
(h) This
Agreement is not transferable or assignable by the undersigned except as may be
provided herein.
Purchase
Agreement
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7. Investor
Information.
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(a)
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Name:
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Broadwood Partners,
L.P.
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(b)
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Address:
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000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000
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(c)
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Social
Security Number
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||
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or
Taxpayer Identification Number:
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XX-XXXXXXX
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(d)
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email:
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(e)
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State
of Residence or Principal Place of
Business:
New
York
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Information
from Corporations, Partnerships, Limited Liability Companies, Trusts, or Other
Entity Investors:
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Date
of Formation:
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January 3,
1989
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Name
and title of person authorized to bind the entity:
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Xxxx X.
Xxxxxxxx
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Business
of the entity:
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Investment
Partnership
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Purchase
Agreement
6
SIGNATURE
PAGE FOR PURCHASER
IN
WITNESS WHEREOF, the undersigned has entered into this Agreement and hereby
agrees to purchase Units for the price stated above and upon the terms and
conditions set forth herein. The undersigned hereby agrees to all of
the terms of the Warrant Agreement and Registration Rights Agreement and agrees
to be bound by the terms and conditions thereof.
Dated: May
13, 2009.
Broadwood Partners,
L.P.
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By:
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Broadwood Capital,
Inc.,
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General
Partner
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By:
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/s/
Xxxx X. Xxxxxxxx
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Xxxx
X. Xxxxxxxx, President
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Purchase
Agreement
7
ACCEPTANCE BY
COMPANY
The
Company hereby agrees to sell to the Purchaser the Units referenced above in
reliance upon all the representations, warranties, terms and conditions
contained in this Agreement.
IN
WITNESS WHEREOF, the undersigned, on behalf of the Company, has executed this
acceptance as of the date set forth below.
Dated: May
13,
2009 BIOTIME,
INC.
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By:
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/s/
Xxxxxx X. Xxxxxxx
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Title:
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Sr.
VP and COO
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Purchase
Agreement
8
