March 31, 2008
March 31,
2008
BioTime,
Inc.
0000
Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxxxx
Xxxxxx, Vice President-Operations
Dear
Xxxxxx:
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
January 1, 2008 through December 31, 2008.
2. Compensation. BioTime
agrees to pay Greenbelt (a) a cash fee of $135,000, and (b) 300,000 common
shares. The shares shall be issued as follows: 150,000 shares on
April 1, 2008, and 75,000 shares on each of the following dates for services
rendered during the preceding calendar quarter: October 1, 2008, and
January 2, 2009. The cash fee shall be due and payable in three equal
installments of $45,000 each on the following dates for services rendered during
the preceding calendar quarter: July 1, 2008, October 1, 2008, and January 2,
2009. 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. Payment of any prorated amount shall be due on the next
proceeding date for payment under this paragraph, subject to the right of
BioTime to defer the cash payment as provided in this paragraph.
3. Deferral of Cash
Fee. BioTime may elect to defer until January 2, 2009 the cash
payments due on July 1, 2008 and October 1, 2008. BioTime shall issue
to Greenbelt 30,000 additional common shares, per deferred payment, at the time
the deferred cash payment is made.
4. Investment
Representations. Financial Adviser represents and warrants to
BioTime that:
(a) Financial
Adviser has received and read BioTime’s Quarterly Report on Form 10-QSB for the
nine months ended September 30, 2007 and BioTime’s Annual Report on
Form 10-KSB for the year ended December 31, 2006, and all Current Reports on
Form 8-K filed by BioTime since January 1, 2007 (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.
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5. Registration
Rights.
(a) BioTime
agrees, at its expense, upon written request from the Financial Adviser, to use
commercially reasonable efforts 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 use commercially reasonable
efforts 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 commercially
reasonable 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 shall
have no obligation to make any cash settlement or payment to the Financial
Adviser or any Selling Securities Holders or to issue any additional Shares in
the event that BioTime is unable to effect or maintain in effect the
registration of the Shares under the 1933 Act or any state securities law
despite BioTime’s commercially reasonable efforts so to do.
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
(b) 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. BioTime shall include in such registration statement any
Shares proposed to be sold by the Selling Securities Holders. Notwithstanding
the foregoing, if
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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. BioTime further
agrees to remove the legend at such time as registration under the 1933 Act
shall no longer be required.
6. Other
Provisions. Except as expressly modified by this letter, all
terms and provisions of the Agreement shall remain in effect.
[Signatures on Following
Page]
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BIOTIME,
INC.
By /s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx,
Chief Executive Officer
By /s/
Xxxxxx
Xxxxxx
Xxxxxx Xxxxxx, Vice
President and Secretary
GREENBELT
CORP.
By /s/ Xxxxxx X.
Xxxxxxxx
Xxxxxx X. Xxxxxxxx,
President
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