REVOLVING LINE OF CREDIT AGREEMENT by and between BIOTIME, INC. as “Borrower” and ALFRED D. KINGSLEY, CYNDEL & CO., INC., AND GEORGE KARFUNKEL as “Lenders” Dated as of April 12, 2006
Exhibit 10.22
by and between
BIOTIME, INC.
as “Borrower”
as “Borrower”
and
XXXXXX X. XXXXXXXX, CYNDEL & CO., INC., AND XXXXXX XXXXXXXXX
as “Lenders”
as “Lenders”
Dated as of April 12, 2006
TABLE OF CONTENTS
1.
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General Definitions. | 1 | ||||
2.
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Draws and Disbursements. | 2 | ||||
3.
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Terms of Payment. | 4 | ||||
4.
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Shares. | 5 | ||||
5.
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Events of Default. | 5 | ||||
6.
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Representations and Warranties of Borrower. | 6 | ||||
7.
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Affirmative Covenants. | 8 | ||||
8.
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Maximum Permitted Interest. | 9 | ||||
9.
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Governing Law. | 9 | ||||
10.
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Successors and Assigns. | 10 | ||||
11.
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Entire Agreement; Amendment. | 10 | ||||
12.
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Survival. | 10 | ||||
13.
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Notices. | 10 | ||||
14.
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Delays and Omissions. | 11 | ||||
15.
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Rules of Construction. | 11 | ||||
16.
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Counterparts. | 12 | ||||
17.
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Investment Representations. | 12 | ||||
18.
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Registration Rights. | 13 | ||||
19.
|
Legends. | 14 |
This Revolving Line of Credit Agreement (“Credit Agreement”) is made and entered into as of
April 12, 2006, by and between Xxxxxx X. Xxxxxxxx, Cyndel & Co., Inc. and Xxxxxx Xxxxxxxxx (each a
“Lender,” and collectively “Lenders”), and BioTime, Inc., a California corporation (“Borrower”).
RECITALS
Borrower has requested a credit facility consisting of a revolving line of credit, and Lenders
are willing to make the requested credit facility to Borrower, but only upon the terms, and subject
to the conditions, contained herein.
AGREEMENT
Now, therefore, in consideration of the premises and the mutual covenants hereinafter
contained, the parties hereto agree as follows:
1. General Definitions. The following words shall have the following meanings:
1.1 “Business Day” means any day that is not a Saturday, a Sunday, or a day on which banks are
required, or permitted, to be closed in the State of New York.
1.2 “Credit Facility” means the right of Borrower to borrow up to $500,000 from Lenders under
the terms and conditions of this Credit Agreement and the Note.
1.3 “Debtor Relief Law” means the Bankruptcy Code of the United States of America, as amended,
or any other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief law affecting the rights of
creditors generally.
1.4 “Earmarked Funds” means funds received by Borrower through (i) the sale of capital stock,
(ii) loans from other lenders, or (iii) funds in excess of $1,000,000 received by Borrower through
the collection of license fees, signing fees, milestone fees, or similar fees (excluding royalties)
under any other present or future agreement pursuant to which Borrower grants one or more licenses
to use Borrower’s patents or technology.
1.5 “Event of Default” or “Events of Default” means any of the events specified in Section 5.
1.6 “Loan” means the loans made by Lenders to Borrower pursuant to this Credit Agreement, and
evidenced by the Note.
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1.7 “Loan Documents” means this Credit Agreement, the Note, and the Security Agreement,
and all other agreements, instruments, and documents in favor of a Lender, now or hereafter
executed by or on behalf of Borrower and delivered to a Lender in connection with this Credit
Agreement or in connection with any of the transactions contemplated hereby.
1.8 “Maturity Date” means the earlier of (i) October 31, 2007, and (ii) such date on which
Borrower shall have received an aggregate of $600,000 through (A) the sale of capital stock, (B)
the collection of license fees, signing fees, milestone fees, or similar fees (excluding royalties)
in excess of $1,000,000 under any present or future agreement pursuant to which Borrower grants one
or more licenses to use Borrower’s patents or technology, (C) funds borrowed from other lenders, or
(D) any combination of sources under clauses (A) through (C).
1.9 “Note” means each promissory note, of even date, in the form attached as EXHIBIT A,
evidencing the amount of the Loan from each Lender, to be executed concurrently with this Credit
Agreement.
1.10 “Security Agreement” means that certain Security Agreement of even date among Borrower
and Lender pursuant to which Borrower is granting Lender security interest in certain specified
collateral to secure Borrower’s obligations under this Agreement and the Note.
1.11 “Shares” means common shares, no par value, of the Borrower.
2. Draws and Disbursements.
2.1 Maximum Loan Amount. On the terms and conditions set forth in this Credit Agreement,
Lenders shall make available to Borrower the Credit Facility, as a revolving line of credit in a
principal amount not to exceed at any one time Five Hundred Thousand Dollars ($500,000), less all
amounts of principal prepaid or required to be prepaid under Section 3.2.1 of this Credit Agreement
(the “Maximum Loan Amount”). Each Lender shall be severally, and not jointly and severally,
obligated to lend One Hundred Sixty-Six Thousand Six Hundred Sixty-Six Dollars and Sixty-Seven
Cents ($166,666.67) of the Maximum Loan Amount.
2.2 Draw Period. Borrower may request from Lenders advances of funds (“Draws”) under the
Credit Facility from the date of this Agreement until October 31, 2007 (the “Draw Period”). As
amounts drawn by Borrower hereunder are repaid, they may be reborrowed subject to the terms and
conditions of this Credit Agreement; provided, that at no time shall the aggregate principal amount
of Loans outstanding under this Credit Agreement exceed the Maximum Loan Amount. The Draw Period
may be terminated by Borrower at any time by written notice to Lenders. Subject to the terms and
conditions of this Credit Agreement, and provided that no Event of Default has occurred, Lenders
shall make advances to Borrower upon request as provided in this
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Section 2. Upon the occurrence of an Event of, one of Lenders’ remedies includes Lenders’
right to terminate the Draw Period and Borrower’s right to make Draws under this Credit Agreement.
2.3 Increments. Draws must be in increments of not less than One Hundred Thousand
Dollars ($100,000), or the remaining amount available under the Credit Facility, whichever is less.
Each Lender shall advance one-half of each Draw.
2.4 Use of Funds. All funds borrowed under this Credit Agreement will be used as working
capital to pay Borrower expenses arising in the ordinary course of business.
2.5 Disbursement Procedures.
2.5.1 Borrower hereby appoints each member of its Office of the President and the Chief
Financial Officer as the officers authorized to make Draws under this Credit Agreement during the
Draw Period. Any one of such officers (the “Authorized Officers”) is authorized to make Draws.
Lender, at its sole option, may require that all requests for Loan funds be in writing, signed by
an Authorized Officer, in a form acceptable to Lenders. Facsimile documents may be accepted by
Lenders as originals. Any Draw by an Authorized Officer shall constitute an ongoing representation
and warranty by Borrower that at the time of request for or payment of any Draw no Event of Default
has occurred.
2.5.2 Draws shall be paid according to the Authorized Officer’s instructions, except that
checks representing Loan funds shall always be made payable to Borrower, and wire transfers shall
only be permitted if Borrower has authorized payment into the account into which the funds are to
be deposited. The appointment of the above-named Authorized Officer(s) shall remain in full force
and effect until written notice of revocation of appointment signed by the Chief Executive Officer
or Chief Financial Officer of Borrower has been received by Lender.
2.5.3 Lenders shall advance Loan funds available under the Credit Facility in accordance with
Borrower’s Draws within four (4) Business Days after the receipt of the Draw.
2.5.4 Each Draw shall be accompanied by the certificates required by Section 2.6.
2.5.5 Borrower shall indemnify and hold Lenders harmless from loss or liability of any kind
arising from or related to any action or inaction taken by Lenders in good faith in reliance upon
instructions received from any Authorized Officer.
2.6 Conditions Precedent. The following conditions must be satisfied before Lenders shall be
obligated to disburse Loan funds to Borrower pursuant to a Draw:
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2.6.1 Due execution. Lenders shall have received duly executed originals of this Credit
Agreement and all other Loan Documents.
2.6.2 Approvals. Lenders shall have received evidence satisfactory to them that all
consents and approvals which are necessary for, or required as a condition of, the validity and
enforceability of this Credit Agreement and all other Loan Documents have been obtained and are in
full force and effect.
2.6.3 Representations and Warranties Correct. All of Borrower’s representations and
warranties contained in this Credit Agreement and in any other Loan Document shall be true and
correct in all material respects on the date the Loan funds are disbursed, and Borrower shall have
delivered to Lenders a certificate executed by an Authorized Officer to such effect.
2.6.4 No Event of Default. No Event of Default shall have occurred, and Borrower shall have
delivered to Lenders a certificate executed by an Authorized Officer to such effect.
2.6.5 Independent Verification. Borrower must provide for Lenders’ review and acceptance such
documentation as may be required by Lenders to ensure Borrower is in compliance with the terms and
conditions of this Credit Agreement, including, without limitation, resolutions of Borrower’s board
of directors or a duly constituted and authorized committee thereof, certified by the secretary or
an assistant secretary of the corporation, authorizing the execution and delivery of this Agreement
and the other Loan Documents and performance of Borrower’s obligations hereunder and thereunder.
2.6.6 Shares. Prior to the initial Draw under this Credit Agreement, Borrower must have
issued the Shares to Lenders.
2.6.7 Closing Costs. Borrower must have paid all attorneys’ fees (not to exceed $10,000 for
all Lenders in the aggregate) incurred by Lenders in connection the preparation, execution, and
delivery of the Loan Documents, and all reports and notices required to be filed by Lenders or
their respective affiliates under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), in connection with this Agreement and Lenders’ receipt of the Shares.
3. Terms of Payment.
3.1 Interest. Interest shall accrue and be payable at the rate of 10% per annum on the
outstanding principal balance of the Loan. Interest shall accrue from the date of each
disbursement of principal pursuant to a Draw. Accrued interest shall be paid with principal on the
Maturity Date. Interest will be charged on that part of outstanding principal of the Loan which
has not been paid and shall be calculated on the basis of a 360-day year and a 30-day month.
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3.2 Payment of Principal. The outstanding principal balance of the Loan, together with
accrued interest, shall be paid in full on the Maturity Date.
3.2.1 Mandatory Prepayment of Principal. In the event that Borrower receives Earmarked
Funds, Borrower shall use the Earmarked Funds to prepay principal, plus accrued interest, within
two business days after such Earmarked Funds are received by Borrower, and the amount of principal
so prepaid shall reduce the Maximum Loan Amount.
3.3 Optional Prepayment of Principal. Borrower may prepay principal, with accrued interest,
at any time and the amount of principal so prepaid shall be available for further Draws by Borrower
during the Draw Period to the extent that the prepayment of principal was not required under
Section 3.2.1.
3.4 Default Interest Rate; Late Payment Charge. In the event that any payment of principal or
interest is not paid within five (5) days from on the date on which the same is due and payable,
such payment shall continue as an obligation of the Borrower, and interest thereon from the due
date of such payment and interest on the entire unpaid balance of the Loan shall accrue until paid
in full at the lesser of (i) fifteen percent (15%) per annum, or (ii) the highest interest rate
permitted under applicable law (the “Default Rate”). From and after the Maturity Date or upon
acceleration of the Note, the entire unpaid principal balance of the Loan with all unpaid interest
accrued thereon, and any and all other fees and charges then due at such maturity, shall bear
interest at the Default Rate.
3.5 Date of Payment. If the date on which a payment of principal or interest on the Loan is
due is a day other than a Business Day, then payment of such principal or interest need not be made
on such date but may be made on the next succeeding Business Day.
3.6 Application of Payments. All payments shall be applied first to costs of collection, next
to late charges or other sums owing Lenders, next to accrued interest, and then to principal, or in
such other order or proportion as Lenders, in their sole discretion, may determine.
3.7 Currency. All payments shall be made in United States Dollars.
4. Shares. As consideration for Lenders making the Credit Faculty available to Borrower,
Borrower will issue and deliver to each Lender 33,333 Shares. No fractional Shares shall be
issued.
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5. Events of Default. The following shall constitute Events of Default: (a) the default of
Borrower in the payment of any interest or principal due under this Credit Agreement or the Note
held by either Lender; (b) the failure of Borrower to perform or observe any other term or
provision of, or covenant, agreement, or obligation under, this Credit Agreement or any other Loan
Document; (c) any act, omission, or other event that constitutes an “Event of Default” under the
Note or the Security Agreement; (d) any representation or warranty of Borrower contained in this
Credit Agreement or in any other Loan Document, or in any certificate delivered by Borrower
pursuant to this Credit Agreement or any other Loan Document, is false or misleading in any
material respect when made or given; (e) Borrower becoming the subject of any order for relief in a
proceeding under any Debtor Relief Law; (f) Borrower making an assignment for the benefit of
creditors; (g) Borrower applying for or consenting to the appointment of any receiver, trustee,
custodian, conservator, liquidator, rehabilitator, or similar officer for it or for all or any part
of its property or assets; (h) the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator, or similar officer for Borrower, or for all or any part of the property
or assets of Borrower, without the application or consent Borrower if such appointment continues
undischarged or unstayed for sixty (60) calendar days; (i) Borrower instituting or consenting to
any proceeding under any Debtor Relief Law with respect to Borrower, or all or any part of its
property or assets, or the institution of any similar case or proceeding without the consent of
Borrower, if such case or proceeding continues undismissed or unstayed for sixty (60) calendar
days; (j) the dissolution or liquidation of Borrower, or the winding-up of the business or affairs
of Borrower; (k) the taking of any action by Borrower to initiate any of the actions described in
clauses (f) through (j) of this paragraph; (l) the issuance or levy of any judgment, writ, warrant
of attachment or execution or similar process against all or any material part of the property or
assets of Borrower if such process is not released, vacated or fully bonded within sixty (60)
calendar days after its issue or levy; or (m) any breach or default by Borrower under any loan
agreement, promissory note, or other instrument evidencing indebtedness payable to a third party.
5.1 Remedies On Default. Upon the occurrence of an Event of Default, at Lender’s option, all
unpaid principal and accrued interest, and all other amounts payable to Lender under this Credit
Facility and any other Loan Document shall become immediately due and payable without presentment,
demand, notice of non-payment, protest, or notice of non-payment. Each Lender also shall have all
other rights, powers, and remedies available under this Credit Agreement and the Note or any other
Loan Document, or accorded by law or at equity. All rights, powers, and remedies of a Lender may
be exercised at any time by the Lender and from time to time after the occurrence of an Event of
Default. All rights, powers, and remedies of a Lender in connection with this Credit Agreement and
the Note and any Loan Document are cumulative and not exclusive and shall be in addition to any
other rights, powers, or remedies provided by law or equity.
6. Representations and Warranties of Borrower. Borrower represents and warrants to Lenders
the following:
6.1 Organization; Capitalization. Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the state of California and has all requisite
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corporate
power and authority to own its property and to carry on its business as now being conducted.
6.2 Authority; Enforceability. Borrower has the power and authority to execute and deliver
this Credit Agreement and each of the other Loan Documents, and to perform all of Borrower’s
obligations under this Credit Agreement and the other Loan Documents. This Credit Agreement and
each of the other Loan Agreements is the valid and binding agreement and obligation of Borrower,
enforceable in accordance with its respective terms, except to the extent limited by any
bankruptcy, insolvency, or similar law affecting the rights of creditors generally. There are no
corporate, contractual, statutory, regulatory, judicial, or other restrictions of any kind upon the
power and authority of Borrower to execute and deliver this Credit Agreement or any other Loan
Document, and to consummate the transactions contemplated by this Credit Agreement and the other
Loan Documents, including, without limitation: (a) the payment of all principal and interest that
may become due on the Loan; and (b) the issuance of the Shares. No action, approval or consent by,
or notice to or filing with, any federal, state, municipal or other governmental department,
commission, agency, regulatory authority, or court is necessary to make this Credit Agreement or
the other Loan Documents the valid agreements binding upon Borrower in accordance with their
respective terms, or to consummate the transactions contemplated by this Credit Agreement and the
other Loan Documents.
6.3 No Conflict. The execution and delivery of this Credit Agreement and the other Loan
Documents, and the consummation of the transactions contemplated by this Credit Agreement and the
other Loan Documents, do not and will not (a) violate any provisions of (i) any rule, regulation,
statute, or law, or (ii) the terms of any order, writ or decree of any court or judicial or
regulatory authority or body, or (iii) the Articles of Incorporation or Bylaws of Borrower, and (b)
conflict with or result in a breach of any condition or provision or constitute a default under or
pursuant to the terms of any contract, mortgage, lien, lease, agreement, debenture or instrument to
which Borrower or any Subsidiary is a party, or which is or purports to be binding upon Borrower,
any Subsidiary, or upon any of their respective properties, and (c) result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets or properties of Borrower or
any Subsidiary.
6.4 Shares. When issued pursuant to this Agreement, the Shares will be validly issued and
outstanding, fully paid and non-assessable.
6.5 Accuracy of Information. Borrower has delivered to Lenders a copy of Borrower’s financial
statements for the year ended on December 31, 2005, as will be included in its Form 10-K for such
fiscal year, its annual report on Form 10-K for the fiscal year ended December 31, 2004, and
quarterly report on Form 10-Q for the fiscal quarter and nine months ended September 30, 2005, and
all Current Reports on Form 8-K filed by Borrower since September 30, 2005 (the “Disclosure Documents”). The financial statements contained in the Disclosure Documents were
prepared in accordance with generally accepted accounting principles, consistently applied, and
accurately reflect the financial condition and results of operations of Borrower at and as of the
dates
7
reported. All financial information and other information contained in the Disclosure
Documents was true and correct in all material respects when such reports were filed under the
Exchange Act, and in the case of the financial statements for the fiscal year ended December 31,
2005, is true and correct in all material respects on the date of this Credit Agreement, except for
changes arising from operations in the ordinary course of business since December 31, 2005.
6.6 Taxes. Borrower has filed when due all federal, state and local income tax returns and
has filed when due all other returns with respect to taxes which are required to be filed with the
Internal Revenue Service and the appropriate authorities of the jurisdictions where business is
transacted by them. All items and entries provided for or reflected in such returns are correct
and are made on a proper basis. All amounts, if any, required to be paid, as shown on such
returns, have been paid. None of such tax returns has been audited. There are no suits, actions,
claims, or investigations, inquiries or proceedings now pending against Borrower in respect of
taxes, governmental charges or assessments, nor are there any matters under discussion with any
governmental authority relating to taxes, governmental charges or assessments asserted by any such
authority.
6.7 Litigation. Except as disclosed in the Disclosure Documents, there are no lawsuits,
arbitration proceedings, administrative proceedings, actions or claims pending or threatened
against Borrower. No fine, penalty or other sanction has been imposed by any federal, state, local
or municipal court, judicial, administrative or regulatory body or authority against Borrower.
There is no outstanding order, writ, injunction or degree of any court, administrative agency or
governmental body or arbitration tribunal against or affecting Borrower or any of its respective
properties, assets, business or prospects.
7. Affirmative Covenants. During the Draw Period, and until such time as the entire principal
balance and accrued interest on the Loan, and all other amounts payable by Borrower under this
Credit Agreement or any other Loan Document have been paid in full, Borrower shall comply with the
following covenants and agreements:
7.1 Furnish Information. Borrower will, at either Lender’s request, furnish information to
Lender relating to Borrower’s business and financial affairs and permit Lender to examine
Borrower’s books and records.
7.2 Comply with Terms and Conditions. Borrower will comply with all terms and conditions of
all other Loan Documents.
7.3 Financial Reports. Borrower will file with the Securities and Exchange Commission, when
due, all quarterly reports, annual reports, current reports, and other documents required pursuant
to the Exchange Act.
8
7.4 Limitation on Dividends and Other Distributions by Borrower. Borrower shall not declare
or pay any dividend or other distribution of cash, other property (excluding shares of capital
stock and options, warrants or other rights to acquire capital stock or stock purchase warrants of
Borrower), or evidences of indebtedness, on account of or with respect to any shares of capital
stock.
7.5 Insurance. Borrower will, and will cause its Subsidiaries, to maintain insurance with
responsible carriers against such risks and in such amounts as is customarily carried by similar
businesses with such deductible as are customarily carried by similar businesses of similar size,
including, without limitation, property and casualty loss, workers’ compensation and interruption
of business insurance.
7.6 Fees and Charges of Attorneys and Others. In the event that a Lender employs attorneys,
accountants, appraisers, consultants, or other professional assistance, excluding the services of
any such person who is a direct employee of a Lender, in connection with any of the following,
then, the reasonable amount of costs, expenses, and fees incurred by the Lender shall be payable on
demand. A Lender may, at its option, add the amount of such costs, expenses, and reasonable fees
to the principal amount of the Loan. A Lender thereafter may charge interest on such amount at the
interest rate then applicable to the principal. Costs, expenses, and reasonable fees of
professionals covered by this provision include such charges for the following:
7.7 The preparation, modification, or renewal of this Credit Agreement and the Note, or any
other documentation incident to the loan transaction;
7.8 Any litigation, dispute, proceeding or action, whether instituted by Lender, Borrower, or
any other person, relating to the Note or this Agreement, including representation of Lender in any
bankruptcy, insolvency, or reorganization case or proceeding instituted by or against Borrower, and
any attempt by Lender to enforce any rights against Borrower;
7.9 In the event of bankruptcy or insolvency proceedings (whether state or federal) instituted
by or against Borrower or involving the Borrower or Property of the Borrower, the Lender may
recover all costs, expenses, and reasonable attorney fees incurred to protect or defend Lender’s
rights under the Note, and other documents underlying the loan transactions whether such costs,
expenses, and attorney fees be contractual or bankruptcy related, including costs, expenses, and
attorney fees for meetings, sessions, matters, proceedings and litigation involving issues solely
distinct to federal bankruptcy law, rules and proceedings as well as other federal and state
litigation and proceedings;
7.10 The inspection, verification, protection, collection, processing, sale, liquidation, or
disposition of security given for the Note;
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7.11 The preparation and filing of all reports required to be filed by Lender under the
Exchange Act during the term of this Credit Agreement in connection with the ownership,
acquisition, or disposition of the Shares, or other equity securities issued by Borrower.
8. Maximum Permitted Interest. No provision of this Credit Agreement or any other Loan
Document, or any transaction related thereto, shall be construed or so operate as to require the
Borrower to pay interest at a greater rate than the maximum allowed by applicable state or federal
law. Should any interest or other charges paid or payable by the Borrower in connection with the
Loan result in the computation or earning of interest in excess of the maximum allowed by
applicable state or federal law, then any and all such excess shall be and the same is hereby
waived by Lender, and any and all such excess paid shall be credited automatically against and in
reduction of the outstanding principal balance due of the Loan, and the portion of said excess
which exceeds such principal balance shall be paid by Lender to the Borrower.
9. Governing Law. This Credit Agreement shall be construed and governed in all respects by
the laws of the State of California.
10. Successors and Assigns. The provisions of this Credit Agreement shall inure to the
benefit of, and be binding upon, the respective successors, assigns, heirs, executors and
administrators of Borrower and Lenders.
11. Entire Agreement; Amendment. This Credit Agreement and the other Loan Documents
constitute the full and entire understanding and agreement among the parties with regard to the
subject matter thereof. This Credit Agreement and any term of this Credit Agreement may be
amended, waived, discharged or terminated only by a written instrument signed by the party to be
charged.
12. Survival. Borrower’s representations and warranties contained in this Credit Agreement
shall survive the funding of each Draw and any investigation made by any party until the Maturity
Date.
13. Notices. All notices and other communications required or permitted to be given pursuant
to this Agreement shall be in writing and shall be deemed given four (4) days after being deposited
in the United States mail, certified postage prepaid, return receipt requested, or when delivered
by hand, by messenger or express air freight service, in any case addressed as follows:
| To Lenders: | Xxxxxx X. Xxxxxxxx | |||
| 000 Xxxx 00xx Xxxxxx, Xxxxx 00X | ||||
| Xxx Xxxx, XX 00000 | ||||
| FAX: (000) 000-0000 |
00
| Xxxxxx & Xx., Xx.x | ||||
| x/x Xxxxxx Xxxxxx | ||||
| 00 Xxxx Xxxxxxxx #0000 | ||||
| Xxxx Xxxxx, XX 00000 | ||||
| FAX: (516) | ||||
| Xxxxxx Xxxxxxxxx | ||||
| 00 Xxxxxx Xxxx | ||||
| Xxx Xxxx, XX 00000 | ||||
| FAX (000) 000-0000 | ||||
| To Borrower: | BioTime, Inc. | |||
| 0000 Xxxxxx Xxxxxx | ||||
| Xxxxxxxxxx, Xxxxxxxxxx 00000 | ||||
| Attention: Xxxxxx Xxxxxxxx, Chief Financial Officer | ||||
| FAX: (000) 000-0000 | ||||
| with a copy to: | ||||
| Xxxxxxx X. Xxxxxx, Esq. | ||||
| Lippenberger, Thompson, Welch, Xxxxxx & Xxxxxxx LLP | ||||
| 000 Xxxxx Xxxxx, Xxxx. | ||||
| Xxxxx Xxxxxx, Xxxxxxxxxx 00000 |
Any party may change its address for the purpose of this Section 13 by giving notice to each other
party in accordance with this Section 13.
14. Delays and Omissions. No delay or omission to exercise any right, power, or remedy
accruing to a Lender, upon any breach or default of Borrower under this Credit Agreement or any
other Loan Document, shall impair any such right, power, or remedy of the Lender, nor shall it be
construed to be a waiver of, or an acquiescence in, any such breach or default or any similar
breach or default thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver,
permit, consent, or approval of any kind or character on the part of a Lender of any breach or
default by Borrower under this Credit Agreement or any other Loan Document, or any waiver of any
provisions or conditions of this Credit Agreement or any other Loan Document by a Lender, must be
made in writing, and shall be effective only to the extent specifically set forth in such writing.
All remedies either under this Agreement or by law and otherwise afforded to any party shall be
cumulative and not alternative.
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15. Rules of Construction.
15.1 Titles and Subtitles. The titles or headings of the Sections and paragraphs of this
Credit Agreement are for convenience of reference only and are not to be considered in construing
this Credit Agreement.
15.2 Singular; Plural. Whenever appropriate in this Agreement, terms in the singular form
shall include the plural (and vice versa) and any gender form shall include all others.
15.3 Section Headings. Section headings are for the convenience of the parties and do not
form a part of this Agreement.
15.4 Sections and Other References. References in this Agreement to sections, paragraphs, and
exhibits are references to articles, sections, and paragraphs in this Agreement and schedules and
exhibits attached to this Agreement unless specified otherwise.
15.5 Severability. If one or more provisions of this Credit Agreement are held to be
unenforceable under applicable law, each such unenforceable provision shall be excluded from this
Credit Agreement and the balance of this Credit Agreement shall be interpreted as if each such
unenforceable provision were so excluded, and the balance of this Credit Agreement as so
interpreted shall be enforceable in accordance with its terms.
16. Counterparts. This Credit Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one instrument.
17. Investment Representations. Each Lender represents and warrants to Borrower that:
17.1 Lender is relying on the information provided in the Disclosure Documents or otherwise
communicated to Lender in writing by Borrower. Lender has not relied on any statement or
representations inconsistent with those contained in the Disclosure Documents. Lender has had a
reasonable opportunity to ask questions of and receive answers from the executive officers and
directors of Borrower, or one or more of its officers, concerning Borrower 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 Lender’s satisfaction;
17.2 Lender 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 other states, in reliance upon the exemptions from
such registration and qualification requirements for non-public offerings. Lender acknowledges and understands that the availability of the aforesaid exemptions depends in part
upon
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the accuracy of certain of the representations, declarations and warranties contained herein,
which Lender hereby makes with the intent that they may be relied upon by Borrower and its officers
and directors in determining Lender’s suitability to acquire the Shares. Lender 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;
17.3 Lender 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;
17.4 Lender has such knowledge and experience in financial and business matters to enable
Lender to utilize the information contained in the Disclosure Documents, or otherwise made
available to Lender to evaluate the merits and risks of an investment in the Shares and to make an
informed investment decision with respect thereto.
17.5 Lender is acquiring the Shares solely for Lender’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
17.6 Lender is an “accredited investor,” as such term is defined in Regulation D promulgated
under the Act.
18. Registration Rights.
18.1 Borrower agrees, at its expense, upon written request from the Lenders, to use
commercially reasonable efforts to register under the 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 Lender 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). Borrower shall not be obligated to file more than two such
registration statements, other than registration statements on Form S-3. Borrower 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). Borrower shall
utilize Form S-3 if it qualifies for such use. Borrower 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
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jurisdictions as shall be reasonably appropriate for distribution of the Shares covered by the
registration statement. Borrower 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 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, Borrower 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 Lender and reasonably
acceptable to Borrower, containing such customary representations and warranties, and
indemnification and contribution provisions Borrower shall have no obligation to make any cash
settlement or payment to the Lenders or any holder of Shares or to issue any additional Shares in
the event that Borrower is unable to effect or maintain in effect the registration of the Shares
under the Act or any state securities law despite Borrower’s commercially reasonable efforts so to
do.
18.2 If, at any time, Borrower proposes to register any of its securities under the Act
(otherwise than pursuant to Section 18.1 above or on a Form S-8 if such form cannot be used for
registration of the Shares pursuant to its terms), Borrower shall, as promptly as practicable, give
written notice to the Lender. Borrower shall include in such registration statement the Shares
proposed to be sold by the Selling Securities Holders. Notwithstanding the foregoing, if the
offering of Borrower’s securities is to be made through underwriters, Borrower shall not be
required to include the 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.
18.3 Borrower 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 Borrower,
listing fees and expenses, and fees and expenses of Borrower’s counsel, independent accountants and
other persons retained or employed by Borrower. Selling Securities Holders shall pay any
underwriters discounts applicable to the Shares.
19. Legends. The Shares issued pursuant to this Agreement shall bear an appropriate legend,
conspicuously disclosing the restrictions on transfer under the Act until the same are registered
for sale under the Act. Borrower agrees that upon the sale of the Shares pursuant to a
registration statement or an exemption, upon the presentation of the certificates containing such a
legend to it’s transfer agent, it will remove such legend. Borrower further agrees to remove the
legend at such time as registration under the Act shall no longer be required.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
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BORROWER: |
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BIOTIME, INC. |
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By |
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Title |
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By |
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Title |
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| LENDERS: | |||
| Xxxxxx X. Xxxxxxxx | |||
| Xxxxxx Xxxxxxxxx | |||
| Cyndel & Co., Inc. | |||
By |
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| Xxxxxx Bayern, President | |||
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EXHIBIT A
