EXHIBIT 6
August 18, 2000
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 (the "Agreement") shall be extended and modified.
(a) Expiration Date. The term of the Agreement will continue in
effect from April 1, 2000 through March 31, 2001. BioTime acknowledges that the
Financial Advisor has provided services under the Agreement subsequent to March
31, 2000 while the parties were discussing new compensation arrangements for
services rendered.
(b) Compensation. In lieu of paying cash fees to Greenbelt, BioTime
will issue to Greenbelt 30,000 common shares (the "Shares") in four quarterly
installments of 7,500 Shares each. Each installment of shares will be issuable
on the last day of the calendar quarter as follows: June 30, 2000; September 30,
2000; December 31, 2000; and March 31, 2001. 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, the number of Shares issuable with respect to
the calendar quarter will be pro rated, to the nearest whole Share, by
multiplying 7,500 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.
(c) Investment Representations. Financial Adviser represents and
warrants to BioTime that:
1. Financial Adviser has received and read BioTime's Annual Report on
Form 10-K for the year ended December 31, 1999, including the risks described in
the "Risk Factors" section, BioTime's Quarterly Report on Form 10-Q for the
three months ended March 31, 2000, and a draft version of BioTime's Quarterly
Report on Form 10-Q for the three and six month periods ended June 30, 2000, and
BioTime's Proxy Statement for its annual meeting of shareholders held July 17,
2000 (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,
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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;
2. 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;
3. 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;
4. 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.
5. 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.
6. 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
7. Financial Adviser is an "accredited investor," as such term is
defined in Regulation D promulgated under the 1933 Act.
(d) Registration Rights.
1. 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. BioTime
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shall not be obligated to file a registration statement with respect to the
Shares prior to March 31, 2001. 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. Bio Time 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
2. If, at any time, Bio Time 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. Bio Time 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, Bio Time 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.
3. Bio Time 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.
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4. Bio Time 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 its 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.
(e) 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 General Partner
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