FIRST AMENDMENT OF COMMERCIAL LICENSE AND OPTION AGREEMENT
Exhibit
10.38
Agreement
08-0155A
FIRST AMENDMENT OF
COMMERCIAL LICENSE AND OPTION AGREEMENT
This First Amendment of Commercial
License and Option Agreement is made effective the 11th day of March 2009
(“Amendment Date”), by and between the Wisconsin Alumni Research Foundation
(hereinafter called “XXXX”), a nonprofit Wisconsin corporation, and BioTime,
Inc. (hereinafter called “Licensee”), a corporation organized and existing under
the laws of California.
WHEREAS, XXXX and Licensee
have entered into a Commercial License and Option Agreement (“Agreement”) with
respect to certain Licensed Patents and Licensed Materials, as defined
therein.
WHEREAS, the parties desire to
amend certain license fee, maintenance fee, and patent cost payment
provisions.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth below, the
parties covenant and agree as follows:
1. Section
4A of the Agreement is amended to read as follows:
“A. License and Maintenance
Fees.
Licensee agrees to pay to XXXX a
license fee of $295,000 due and payable as follows: (1) the first
installment of $10,000 shall be paid in cash within thirty (30) days after the
Effective Date of this Agreement, (2) the second installment of $70,000 shall be
paid within ten (10) days after the Amendment Date by issuing to XXXX a number
of common shares, no par value, of Licensee (“Shares”) having a Market Value of
$70,000, and (3) the remaining $215,000 shall be paid in cash on the earlier of:
(i) thirty (30) days after Licensee raises $5,000,000 or more of new equity
financing or (ii) March 2, 2010. A maintenance fee of $25,000 shall
be due annually on March 2 of each year commencing March 2, 2010 and continuing
thereafter for the term of this Agreement. “Market Value” of the
Shares shall be the aggregate market value of the Shares based on the closing
price per share for such Shares as reported on the OTC Bulletin Board on the
Amendment Date.”
2. Section
4C of the Agreement is amended to read as follows:
“C. Patent Fees and
Costs.
Licensee also agrees to pay to XXXX
$25,000 toward reimbursement of the costs associated with preparing, filing and
maintaining the Licensed Patents, which shall be due and payable as
follows: the first installment of $5,000 shall be due within thirty
(30) days of the Effective Date of this Agreement, and the remaining $20,000
shall be due on the earlier of (i) thirty (30) days after Licensee raises
$5,000,000 or more of new equity financing or (ii) March 2, 2010.”
3. XXXX
represents and warrants to Licensee that:
(a) XXXX has received from Licensee the
following reports filed by Licensee under the Securities Exchange Act of
1934, as amended: (a) a copy of Licensee’s annual report on Form
10-KSB for the fiscal year ended December 31, 2007, and quarterly report on Form
10-Q
for the fiscal quarter and nine months
ended September 30, 2008, and all Current Reports on Form 8-K filed by Licensee
since November 19, 2008 (the “Disclosure Documents”);
(b) XXXX
is relying on the information provided in the Disclosure Documents or otherwise
communicated to XXXX in writing by Licensee. XXXX has not relied on
any statement or representations inconsistent with those contained in the
Disclosure Documents. XXXX has had a reasonable opportunity to ask
questions of and receive answers from the executive officers and directors of
Licensee, or one or more of its officers, concerning Licensee and to obtain
additional information, to the extent possessed or obtainable without
unreasonable effort or expense, necessary to verify the information in the
Disclosure Documents. All such questions have been answered to XXXX’x
satisfaction;
(c) XXXX
understands that the Shares are being offered and sold without registration
under the Securities Act of 1933, as amended (the “Act”) or qualification under
the California Corporate Securities Law of 1968, or under the laws of Wisconsin
or any other state, in reliance upon the exemptions from such registration and
qualification requirements for non-public offerings. XXXX
acknowledges and understands that the availability of the aforesaid exemptions
depends in part upon the accuracy of certain of the representations,
declarations and warranties contained herein, which XXXX hereby makes with the
intent that they may be relied upon by Licensee and its officers and directors
in determining XXXX’x suitability to acquire the Shares. XXXX
understands and acknowledges that no federal, state or other agency has reviewed
or endorsed the offering of the Shares, or made any finding or determination as
to the fairness of the offering or completeness of the information in the
Disclosure Documents;
(d) XXXX
understands that the Shares may not be offered, sold, or transferred in any
manner unless subsequently registered under the Act, or unless there is an
exemption from such registration available for such offer, sale or
transfer;
(e) XXXX
has such knowledge and experience in financial and business matters to enable
XXXX to utilize the information contained in the Disclosure Documents, or
otherwise made available to XXXX to evaluate the merits and risks of an
investment in the Shares, and to make an informed investment decision with
respect thereto;
(f) XXXX
is acquiring the Shares solely for XXXX’x own account and for long-term
investment purposes, and not with a view to, or for sale in connection with, any
distribution of the Shares; and
(g) XXXX
is an “accredited investor,” as such term is defined in Regulation D promulgated
under the Act.
4. The
Shares shall bear an appropriate legend, conspicuously disclosing the
restrictions on transfer under the Act. Licensee agrees that upon the
sale of the Shares and pursuant to an exemption from registration under the Act,
upon the presentation of the certificates containing such a legend to it’s
transfer agent, Licensee will remove such legend. Licensee further
agrees to remove the legend at such time as registration under the Act shall no
longer be required.
2
|
WISCONSIN
ALUMNI RESEARCH FOUNDATION
|
||
|
By:
|
/s/ Xxxxx X. Xxxxxxxxxxxx | |
|
Xxxxx
X. Xxxxxxxxxxxx, Director of Licensing
|
||
|
BIOTIME,
INC.
|
||
|
By:
|
/s/ Xxxxxxx X. Xxxx | |
|
Xxxxxxx
X. Xxxx,
|
||
|
Chief
Executive Officer
|
||
3
