Exhibit 18
December 2, 2002
BioTime, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx, Chief Executive Officer
RE: Financial Adviser Agreement
Dear Xxxx:
This letter sets forth the terms on which the letter agreement between
BioTime, Inc. ("BioTime") and Greenbelt Corp. ("Financial Adviser"), dated April
30, 1998, as amended, (the "Agreement") shall be extended and modified.
1. Expiration Date. The term of the Agreement will continue in
effect from April 1, 2002 through March 31, 2003. BioTime acknowledges that the
Financial Advisor has provided services under the Agreement subsequent to March
31, 2002 while the parties were discussing new compensation arrangements for
services rendered.
2. Compensation. BioTime agrees to pay Greenbelt a cash fee of
$60,000 and to issue to Greenbelt 100,000 common shares (the "Shares") in
quarterly installments as follows: (a) $30,000 in cash will be payable within
three days after the date of this Agreement, and the balance of the cash will be
payable in two quarterly installments of $15,000 each on January 2, 2003 and
March 31, 2003, and (b) 75,000 Shares will be issuable on January 2, 2003 for
services rendered through December 31, 2002, and 25,000 Shares will be issuable
on March 31, 2003 for services rendered from January 1, 2003 through that date.
In the event that the Agreement is terminated by either party and such
termination takes effect on a date other than the last day of a calendar
quarter, the amount of cash and number of Shares issuable with respect to the
calendar quarter will be pro rated, to the nearest whole Share, by multiplying
the amount of cash payable and Shares issuable for that quarter by a fraction
the numerator of which is the number of days that have elapsed from the first
day of the calendar quarter through the date of termination, and the denominator
of which is the number of days in the calendar quarter.
3. Investment Representations. Financial Adviser represents and
warrants to BioTime that:
(a) Financial Adviser has received and read BioTime's
Annual Report on Form 10-K for the year ended December 31, 2001, including the
risks described in the "Risk Factors" section, BioTime's Quarterly Reports on
Form 10-Q for the three and six month periods ended March 31, 2002 and financial
statements for the three and nine month periods ended September 30, 2002, and
BioTime's Proxy Statement for its annual meeting of shareholders held October
28, 2002 (collectively, the "SEC Filings"). Financial Adviser is relying on the
information provided in the SEC Filings or otherwise communicated to Financial
Adviser in writing by BioTime. Financial Adviser has not relied on any statement
or representations inconsistent with those contained in the SEC Filings.
Financial Adviser has had a reasonable opportunity to ask questions of and
receive answers from the executive officers and directors of BioTime, or one or
more of its officers, concerning BioTime and to obtain additional information,
to the extent possessed or obtainable without unreasonable effort or expense,
necessary to verify the information in the SEC Filings. All such questions have
been answered to Financial Adviser's satisfaction;
(b) Financial Adviser understands that the Shares are
being offered and sold without registration under the Securities Act of 1933
(the "1933 Act") or qualification under the California Corporate Securities Law
of 1968, or under the laws of other states, in reliance upon the exemptions from
such registration and qualification requirements for non-public offerings.
Financial Adviser 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 Financial
Adviser hereby makes with the intent that they may be relied upon by BioTime and
its officers and directors in determining Financial Adviser's suitability to
purchase the Shares. Financial Adviser 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 SEC Filings;
(c) Financial Adviser understands that the Shares may
not be offered, sold, or transferred in any manner, unless subsequently
registered under the 1933 Act, or unless there is an exemption from such
registration and an opinion of counsel for BioTime has been rendered stating
that such offer or transfer will not violate any federal or state securities
laws;
(d) Financial Adviser understands and agrees that all
certificates evidencing the Shares shall bear an appropriate legend to the
effect that the securities have not been registered under the 1933 Act and may
not be sold or transferred in the absence of such registration or an exemption
therefrom.
(e) Financial Adviser has such knowledge and
experience in financial and business matters to enable it to utilize the
information contained in the SEC Filings, or otherwise made available to
Financial Adviser to evaluate the merits and risks of an investment in the
Shares and to make an informed investment decision with respect thereto.
(f) Financial Adviser is purchasing the Shares solely
for Financial Adviser's 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) Financial Adviser is an "accredited investor," as such
term is defined in Regulation D promulgated under the 1933 Act.
4. Registration Rights.
(a) BioTime agrees, at its expense, upon written
request from the Financial Adviser, to register under the 1933 Act, the Shares
and to take such other actions as may be necessary to allow the Shares to be
freely tradable, without restrictions, in compliance with all regulatory
requirements. A written request for registration shall specify the quantity of
the Shares intended to be sold, the plan of distribution and the identity of the
sellers, which may include the Financial Adviser and assignees of its rights
hereunder (collectively, "Selling Securities Holders"), and whether the
registration shall be pursuant to an underwritten public offering or a "shelf"
registration pursuant to Rule 415 (or similar rule that may be adopted by the
Securities and Exchange Commission). BioTime shall not be obligated to file more
than two such registration statements, other than registration statements on
Form S-3. BioTime shall keep such registration statements effective for a period
of at least nine months, except that registration statements on Form S-3 shall
be kept effective for at least three years (or such lesser period as the parties
may agree, but in no event beyond the completion of the distribution or
distributions being made pursuant thereto). BioTime shall utilize Form S-3 if it
qualifies for such use. BioTime shall make all filings required with respect to
the registration statements and will use its best efforts to cause such filings
to become effective, so that the Shares being registered shall be registered or
qualified for sale under the securities or blue sky laws of such jurisdictions
as shall be reasonably appropriate for distribution of the Shares covered by the
registration statement. BioTime will furnish to the Selling Securities Holders
such numbers of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the 1933 Act and such other related
documents as the Selling Securities Holders may reasonably request in order to
effect the sale of the Shares. To effect any offering pursuant to a registration
statement under this Section, BioTime shall enter into an agreement containing
customary representations and warranties, and indemnification and contribution
provisions, all for the benefit of Selling Securities Holders, and, in the case
of an Underwritten public offering, an underwriting agreement with an investment
banking firm selected by the Financial Adviser and reasonably acceptable to
BioTime, containing such customary representations and warranties, and
indemnification and contribution provisions
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(b) If, at any time, BioTime proposes to register any
of its securities under the 1933 Act (otherwise than pursuant to paragraph 4(a)
above or on a Form S-8 if such form cannot be used for registration of the
Shares pursuant to its terms), BioTime shall, as promptly as practicable, give
written notice to the Financial Adviser. BioTime shall include in such
registration statement any Shares proposed to be sold by the Selling Securities
Holders. Notwithstanding the foregoing, if the offering of BioTime's securities
is to be made through underwriters, BioTime 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 Selling Securities Holders agree to postpone their sales until 10
days after the distribution is completed.
(c) BioTime 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
BioTime, listing fees and expenses, and fees and expenses of BioTime's counsel,
independent accountants and other persons retained or employed by BioTime.
Selling Securities Holders shall pay any underwriters discounts applicable to
Shares.
(d) BioTime agrees that upon the sale of Shares
pursuant to a registration statement or an exemption, upon the presentation of
the certificates containing such legend to it=s transfer agent, it will remove
such legend. Bio Time further agrees to remove the legend at such time as
registration under the 1933 Act shall no longer be required.
5. AMEX Listing. Xxxxxxxxx agrees that the issuance of the
Shares under this Agreement is subject to compliance with the rules of the
American Stock Exchange (AMEX). If issuance of any of the Shares would violate
any AMEX rule or if any of the Shares are denied listing on AMEX because the
amount exceeds the amount permissible to be issued to Greenbelt under any AMEX
rule, in lieu of issuing such Shares BioTime will pay Greenbelt an amount of
cash to be agreed upon, but not more than the fair market value of such Shares.
6. Other Provisions. Except as expressly modified by this
letter, all terms and provisions of the Agreement shall remain in effect.
BIOTIME, INC.
By /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, Chief Executive Officer
By /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, Secretary
GREENBELT CORP.
By /s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
Title Vice President
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