Amendment of Warrant Agreement Dated as of , 2005
Exhibit 4.7
Amendment of Warrant Agreement
Dated as of
,
2005
THIS AMENDMENT OF WARRANT AGREEMENT, dated as of
,
2005, between BioTime, Inc., a California corporation (the
“Company”), and American Stock Transfer &
Trust Company (“Warrant Agent”) for the benefit of
each registered holder of a Warrant described herein
(“Holder”) amends that certain Warrant Agreement dated
December 9, 2003 (the “Agreement”). The Company
has previously issued 2,780,150 common share purchase warrants
(the “Original Warrants”) governed by the Agreement.
The Company proposes to issue additional common share purchase
warrants (the “Additional Warrants”) to purchase up to
an aggregate of 5,961,435 of its common shares, no par value
(the “Common Stock”) as follows: (a) up to
3,574,290 upon the exercise of subscription rights (the
“Rights”); (b) up to an additional 1,787,145
Warrants through the sale of up to 1,787,145 Units to fill
excess over-subscriptions of Rights, and (c) 600,000
Warrants to certain persons named as Guarantors pursuant to a
Standby Purchase Agreement between such persons and the Company
(the “Standby Guaranty Warrants”). Each Unit will be
comprised of one share of Common Stock and one Warrant. Each
Right will entitle the holder thereof to purchase one
“Unit” for every five (5) Rights held.
In consideration of the foregoing and for the purpose of
defining the terms and provisions of the Warrants and the
respective rights and obligations thereunder of the Company and
each Holder, the Company agrees that the Agreement is amended by
as follows:
Section 1.
Issuance of Additional Warrants; Term of Additional
Warrants.
1.1 The Company is issuing and
delivering to each person who purchases Units a Warrant to
purchase a number of Warrant Shares equal to the number of Units
purchased by such purchaser.
1.2 The Company is issuing and
delivering to the Guarantors under the Standby Guaranty
Agreement an aggregate of 600,000 Standby Guaranty Warrants.
Section 2.
Warrants Covered by this Agreement. As used in the
Agreement, as amended hereby, the term “Warrants”
refers to all Warrants, including the Original Warrants, the
Standby Guaranty Warrants, and the other Additional Warrants.
The Original Warrants, the Standby Guaranty Warrants and the
other Additional Warrants are identical in all respects. The
shares of Common Stock issuable upon exercise of the Warrants
are referred to herein as the “Warrant Shares.”
Section 3.
Expiration Date of Warrants. Subject to the terms
of this Agreement, as amended hereby, a Holder of any Warrant
(including any Warrants into which a Warrant may be divided)
shall have the right, which may be exercised at any time prior
to 5:00 p.m., New York Time
on ,
2010 (the “Expiration Date”), to purchase from the
Company the number of fully paid and nonassessable Warrant
Shares which the Holder may at the time be entitled to purchase
upon exercise of any of such Warrant. So long as the Warrants
are listed for trading on any national securities exchange, the
Company will not extend the Expiration Date without first giving
such securities exchange notice of such extension within the
time required by the exchange, but in no event less than twenty
(20) days prior notice.
Section 4.
Form of Warrant. The Warrants shall be represented
by a certificate in substantially the form of Exhibit A
hereto. The price per Warrant Share and the number of Warrant
Shares issuable upon exercise of each Warrant are subject to
adjustment upon the occurrence of certain events, all as
provided in the Agreement. The Warrants shall be executed on
behalf of the Company by its Chairman of the Board, President or
one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or any Assistant Secretary.
The signature of any such officers on the Warrants may be manual
or facsimile. Any Holder of a Warrant Certificate evidencing an
Original Warrant may exchange the same at the office of the
Warrant Agent for a Warrant Certificate in substantially the
form of Exhibit A by surrender of the Original Warrant
Certificate properly endorsed either separately or in
combination with one or more other Warrant Certificates for one
or more new Warrant Certificates evidencing the right of the
Holder thereof to purchase the aggregate number of shares as
were purchasable on exercise of the Warrants evidenced by the
Warrant Certificate or Certificates exchanged.
Section 5.
Notices; Principal Office. Any notice pursuant to
the Agreement, as amended hereby, by the Company or by any
Holder to the Warrant Agent, or by the Warrant Agent or by any
Holder to the Company, shall be in writing and shall be
delivered in person, or mailed first class, postage prepaid
(a) to the
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Company, at its office, Attention: Secretary or (b) to the
Warrant Agent, at its offices as designated at the time the
Warrant Agent is appointed. The address of the principal office
of the Company is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Any notice mailed pursuant to the Agreement,
as amended hereby, by the Company or the Warrant Agent to the
Holders shall be in writing and shall be mailed first class,
postage prepaid, or otherwise delivered, to such Holders at
their respective addresses on the books of the Company or the
Warrant Agent, as the case may be. Each party hereto and any
Holder may from time to time change the address to which notices
to it are to be delivered or mailed hereunder by notice to the
other party.
Section 6.
Effect of Amendment. Except as amended hereby, all
provisions of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed, all as of the day and year first
above written.
| BIOTIME, INC. |
| By: |
|
|
| Title: |
|
|
| By: |
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
| Title: | Secretary |
| AMERICAN STOCK TRANSFER & TRUST COMPANY |
| By: |
|
|
| Title: |
|
|
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Exhibit A
VOID AFTER 5:00 P.M. NEW YORK TIME,
,
2010
| Certificate No. | Warrant to Purchase |
[Insert number of Shares]
Shares of Common Stock
BIOTIME, INC.
COMMON STOCK PURCHASE WARRANTS
This certifies that, for value received, [Insert name of Holder]
or registered assigns (the “Holder”), is entitled to
purchase from BioTime, Inc. a California corporation (the
“Company”), at a purchase price per share [Insert
Warrant Price determined pursuant to Sections 4 and 10
of the Warrant Agreement] (the “Warrant Price”), the
number of its Common Shares, no par value per share (the
“Common Stock”), shown above. The number of shares
purchasable upon exercise of the Common Stock Purchase Warrants
(the “Warrants”) and the Warrant Price are subject to
adjustment from time to time as set forth in the Warrant
Agreement referred to below. Outstanding Warrants not exercised
prior to 5:00 p.m., New York time, on
,
2010 shall thereafter be void.
Subject to restriction specified in the Warrant Agreement,
Warrants may be exercised in whole or in part by presentation of
this Warrant Certificate with the Purchase Form on the reverse
side hereof duly executed, which signature shall be guaranteed
by a financial institution that is a participant in a recognized
signature guarantee program., and simultaneous payment of the
Warrant Price (or as otherwise set forth in Section 10 of
the Warrant Agreement) at the principal office of the Warrant
Agent. Payment of the Warrant Price shall be made in cash or by
certified or bank cashier’s check in such amount as
provided in Section 3 of the Warrant Agreement. As provided
in the Warrant Agreement, the Warrant Price and the number or
kind of shares which may be purchased upon the exercise of the
Warrant evidenced by this Warrant Certificate are, upon the
happening of certain events, subject to modification and
adjustment.
The Warrants evidenced by this Warrant Certificate may be
redeemed by the Company, at its election, at any time if the
closing price of the Common Stock on a national securities
exchange (including the Nasdaq Stock Market National Market
System), or the average bid price as quoted in Nasdaq Stock
Market if the Common Stock is not listed on a national
securities exchange, equals or exceeds 200% of the Warrant Price
for any twenty (20) consecutive trading days ending not
more than twenty (20) days prior to the date of the notice
given pursuant to Section 6.2 of the Warrant Agreement.
From and after the date specified by the Company for redemption
of the Warrants (the “Redemption Date”), the
Warrants evidenced by this Warrant Certificate shall no longer
be deemed outstanding and all rights of the Holder of this
Warrant Certificate shall cease and terminate, except for the
right of the registered Holder to receive payment of the
redemption price of five cents ($0.05) per Warrant Share upon
presentation and surrender of this Warrant Certificate. The
Redemption Date shall ▇▇▇▇▇, and the notice of redemption
shall be of no effect, if the closing price or average bid price
of the Common Stock, as applicable under Section 6.1 of the
Warrant Agreement, does not equal or exceed 120% of the Warrant
Price on the Redemption Date and the five trading days
immediately preceding the Redemption Date, but the right
Company shall have the right to redeem the Warrants at a future
date if the conditions set forth in Section 6.1 of the
Warrant Agreement are subsequently met and a new notice setting
a new Redemption Date is sent to Warrant holders.
This Warrant Certificate is issued under and in accordance with
a Warrant Agreement dated as of December 9, 2003, as
amended
,
2005, between the Company and the Warrant Agent named therein,
and is subject to the terms and provisions contained in the
Warrant Agreement, to all of which the Holder of this Warrant
Certificate by acceptance of this Warrant Certificate consents.
A copy of the Warrant Agreement, as amended, may be obtained by
the Holder hereof upon written request to the Company.
Upon any partial exercise of the Warrants evidenced by this
Warrant Certificate, there shall be issued to the Holder hereof
a new Warrant Certificate in respect of the shares of Common
Stock as to which the Warrants evidenced by this Warrant
Certificate shall not have been exercised. This Warrant
Certificate may be exchanged at the office of the Warrant Agent
by surrender of this Warrant Certificate properly endorsed
either separately or in combination with one or more other
Warrant Certificates for one or more new Warrant Certificates
evidencing the right of the Holder thereof to purchase the
aggregate number of shares as were purchasable on exercise of
the Warrants evidenced by the Warrant Certificate or
Certificates exchanged. No fractional shares will be issued upon
the exercise of any Warrant, but the Company will pay the cash
value thereof determined as provided in the Warrant Agreement,
as amended. This Warrant Certificate is transferable at the
office of the Warrant Agent in the manner and subject to the
limitations set forth in the Warrant Agreement, as amended.
The Holder hereof may be treated by the Company, the Warrant
Agent and all other persons dealing with this Warrant
Certificate as the absolute owner hereof for any purpose and as
the person entitled to exercise the rights represented hereby,
or to the transfer hereof on the books of the Company, any
notice to the contrary notwithstanding, and until such transfer
on such books, the Company and the Warrant Agent may treat the
Holder hereof as the owner for all purposes.
Neither the Warrants nor this Warrant Certificate entitle any
Holder to any of the rights of a stockholder of the Company.
This Warrant Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the
Warrant Agent.*
DATED:
| BIOTIME, INC. | |
|
By: |
|
|
Title: |
| (Seal) | |
|
Attest: |
|
| [COUNTERSIGNED: | |
| WARRANT AGENT |
| By: | _____________________________________] |
| Authorized Signature |
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PURCHASE FORM
(To be executed upon exercise of Warrant)
To BioTime, Inc.:
The undersigned hereby irrevocably elects to exercise the right
of purchase represented by the within Warrant Certificate for,
and to purchase
thereunder, shares
of Common Stock, as provided for therein, and tenders herewith
payment of the Warrant Price in full in the form of cash or a
certified or bank cashier’s check.
Please issue a certificate or certificates for such shares of
Common Stock in the name of, and pay any cash for any fractional
share to:
(Please Print Name)
(Please Print Address)
(Social Security Number or
Other Taxpayer Identification Number)
(Signature)
| NOTE: | The above signature should correspond exactly with the name on the face of this Warrant Certificate or with the name of the assignee appearing in the assignment form below. |
And, if said number of shares shall not be all the shares
purchasable under the within Warrant Certificate, a new Warrant
Certificate is to be issued in the name of said undersigned for
the balance remaining of the share purchasable thereunder less
any fraction of a share paid in cash.
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ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate)
For value
received, hereby
sells, assigns and transfers
unto the
within Warrant Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint attorney,
to transfer said Warrant Certificate on the books of the
within-named Company, with full power of substitution in the
premises.
|
|
|
| (Signature) |
| NOTE: | The above signature should correspond exactly with the name on the face of this Warrant Certificate. |
Dated:
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