Contract
REVOLVING LINE OF CREDIT AGREEMENT TABLE OF CONTENTS |
1. General Definitions......................................................................................1 2. Draws and Disbursements..................................................................................2 3. Terms of Payment.........................................................................................4 4. Warrant..................................................................................................5 5. Events of Default........................................................................................5 6. Remedies On Default......................................................................................6 7. Representations and Warranties of Borrower...............................................................6 8. Affirmative Covenants....................................................................................8 9. Fees and Charges of Attorneys and Others.................................................................9 10. Maximum Permitted Interest..............................................................................10 11. Governing Law...........................................................................................10 12. Successors and Assigns..................................................................................10 13. Entire Agreement; Amendment.............................................................................10 14. Survival................................................................................................10 15. Notices.................................................................................................10 16. Delays and Omissions....................................................................................11 17. Rules of Construction...................................................................................11 18. Severability............................................................................................12 19. Counterparts............................................................................................12
i REVOLVING LINE OF CREDIT AGREEMENTThis Revolving Line of Credit Agreement (“Credit Agreement”) is made and entered into as of March 27, 2001, by and between Xxxxxx X. Xxxxxxxx (“Lender”), and BioTime, Inc., a California corporation (“Borrower”). RECITALS Borrower has requested a credit facility consisting of a revolving line of credit, and Lender is 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 1.1.7 “Maturity Date” means the earlier of (i) March 31, 2002, and (ii) such date
on which Borrower shall have received an aggregate of $2,000,000 through (A) the sale of capital
stock, (B) the collection
of license fees, signing fees, milestone fees, or similar fees under
Borrower’s Exclusive License Agreement with Xxxxxx Laboratories, Exclusive
License Agreement with Horus, B.V., or under any other 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). 2
2.5.1 Borrower hereby appoints its Chief Executive Officer, President, and
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 Lender. Facsimile documents may be accepted by Lender 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. 3
2.6.5 Independent Verification. Borrower must provide for Lender’s
review and acceptance such
documentation as may be required by Lender 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. 4 1.3.3 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. 5
1.6 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 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. 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 Lender may be exercised at any time by Lender and from time to
time after the occurrence of an Event of Default. All rights, powers, and
remedies of 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
1.7.4 Warrant and Warrant Shares. The Warrant, when issued pursuant to this
Credit Agreement, will be a duly authorized, valid, and binding obligation of Borrower,
enforceable in accordance with its terms. When issued and sold upon the exercise of the Warrant
in accordance with its terms, the common shares of the Borrower will be validly issued and
outstanding, fully paid and non-assessable. 1.7.6 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. 7
1.8.2 Other Documents. Borrower will execute all other documents as Lender
may reasonably require in connection with this Credit Agreement and Note in order to perfect its
lien or security interest in any of the collateral for the loan, or otherwise to give effect to the terms
and conditions of the loan or guaranty for the loan. 1.8.4 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 and within 5 days of the date such reports and other
documents are so required to be filed, to mail to Lender a copy of such reports. 8 1.9.4 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; 9 1.15 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 Lender: Xxxxxx X. Xxxxxxxx 000 Xxxx Xxxxxx Xxx Xxxx, XX 00000 FAX: (000) 000-0000 To Borrower: BioTime, Inc. 000 Xxxxxx Xxxxxx Xxxxxxxx, Xxxxxxxxxx 00000 Attention: Xxxx Xxxxxx, Chief Executive 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 15 by giving notice to each other party in accordance with this Section 15. 1.16 Delays and Omissions. No delay or omission to exercise any right, power, or remedy accruing to 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 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 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 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. 1.17 Rules of Construction. 10 1.17.2 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. 1.18 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. 11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. |
BORROWER: BIOTIME, INC. By /s/ Xxxx X. Xxxxxx ------------------------------------------- Title Chief Executive Officer ------------------------------------------- By /s/ Victoria Bellport ------------------------------------------- Title Chief Financial Officer ------------------------------------------- LENDER: /s/ Xxxxxx X. Xxxxxxxx ------------------------------------------------ Xxxxxx X. Xxxxxxxx
12 EXHIBIT AREVOLVING CREDIT NOTE |
$1,000,000 March 27, 2001
FOR VALUE RECEIVED, the undersigned, BioTime, Inc., a California corporation (Borrower”) hereby promises to pay to the order of Xxxxxx X. Xxxxxxxx (“Lender”) the principal sum of ONE MILLION DOLLARS ($1,000,000) or such lesser amount as may from time to time be outstanding as the Loan pursuant to that certain Revolving Line of Credit Agreement, of even date, between Borrower and Lender (the “Credit Agreement”), together with interest on the unpaid balance of the Loan at the rate or rates hereinafter set forth. This Revolving Credit Note is the Note described in the Credit Agreement. All capitalized terms not otherwise defined in this Note shall have the meanings defined in the Credit Agreement. 1. 1.1 Terms of Payment. 1
1.1.5 Default Interest Rate. 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. 2 1.3 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 under this Note shall become immediately due and payable without
presentment, demand, notice of non-payment, protest, or notice of non-payment.
Lender also shall have all other rights, powers, and remedies available under
the Credit Agreement and any other Loan Document, or accorded by law or at
equity. All rights, powers, and remedies of Lender may be exercised at any time
by Lender and from time to time after the occurrence of an Event of Default. All
rights, powers, and remedies of Lender in connection with this Note and any
other Loan Document are cumulative and not exclusive and shall be in addition to
any other rights, powers, or remedies provided by law or equity. 3
1.4.7 The terms, covenants, and conditions contained in this Note shall be binding
upon the heirs, executors, administrators, successors, and assigns of Borrower, and each of them,
and shall inure to the benefit of the heirs, executors, administrators, successors and assigns of
Lender. 4 |
BORROWER: BIOTIME, INC. By _____________________________________________ Title ___________________________________________ By _____________________________________________ Title ___________________________________________
5 EXHIBIT B Warrant Agreement 6 WARRANT AGREEMENT, dated as of March 27, 2001, between BioTime, Inc., a California corporation (the “Company”), and Xxxxxx X. Xxxxxxxx (the “Lender”). The Company proposes to issue a Common Share Purchase Warrant, as hereinafter described (the “Warrants”), to purchase up to an aggregate of 50,000 of its Common Shares, no par value (the “Common Stock”) (the shares of Common Stock issuable upon exercise of the Warrants being referred to herein as the “Warrant Shares”), in connection with the Revolving Line of Credit Agreement of even date (the “Credit Agreement”), between the Company and the Lender.. In consideration of the foregoing and for the purpose of defining the terms and provisions of the Warrant and the respective rights and obligations thereunder of the Company and each registered owner of the Warrant (the “Holder”), the Company and the Lender hereby agree as follows: SECTION 1. Issuance of Warrants; Term of Warrants. Concurrently with the execution and delivery of this Agreement and the Credit Agreement, the Company is issuing and delivering to the Lender a Warrant to purchase 50,000 Warrant Shares, which Warrant shall be represented by a certificate in substantially the form of Exhibit A hereto. Subject to the terms of this Agreement, a Holder of any of such Warrant (including any Warrants into which the 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 March 26, 2006 (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. SECTION 2. Transferability and Form of Warrant. 1 2.3 Transfer. Subject to Section 2.2, the Warrant shall be transferable only on the
Warrant Register upon delivery thereof duly endorsed by the Holder or by his duly authorized
attorney or representative, or accompanied by proper evidence of succession, assignment or
authority to transfer, which endorsement shall be guaranteed by a bank or trust company or a
broker or dealer which is a member of the National Association of Securities Dealers, Inc. In all
cases of transfer by an attorney, the original power of attorney, duly approved, or a copy thereof,
duly certified, shall be deposited and remain with the Company (or the Warrant Agent, if
appointed). In case of transfer by executors, administrators, guardians or other legal
representatives, duly authenticated evidence of their authority shall be produced, and may be
required to be deposited and remain with the Company (or the Warrant Agent, if appointed) in its
discretion. Upon any registration of transfer, the Company shall execute and deliver (or if
appointed, the Warrant Agent shall countersign and deliver) a new Warrant or Warrants to the
persons entitled thereto. SECTION 3. Countersignature of Warrants. In the event that the Company shall appoint a Warrant Agent to act on its behalf in connection with the division, transfer, exchange or exercise of Warrants, the Warrants issued after the date of such appointment shall be countersigned by the Warrant Agent (or any successor to the Warrant Agent then acting as warrant agent) and shall not be valid for any purpose unless so countersigned. Warrants may be countersigned, however, by the Warrant Agent (or by its successor as warrant agent hereunder) and may be delivered by the Warrant Agent, notwithstanding that the persons whose manual or facsimile signatures appear thereon as proper officers of the Company shall have ceased to be such officers at the time of such countersignature, issuance or delivery. The Warrant Agent (if so appointed) shall, upon written instructions of the Chairman of the Board, the President, an Executive or Senior Vice President, the Treasurer or the Controller of the Company, countersign, issue and deliver Warrants entitling the Holders thereof to purchase not more than 50,000 Warrant Shares (subject to adjustment pursuant to Section 10 hereof) and shall countersign and deliver Warrants as otherwise provided in this Agreement. 2 SECTION 4. Exchange of Warrant Certificates. Each Warrant certificate may be exchanged, at the option of the Holder thereof, for another Warrant certificate or Warrant certificates in different denominations entitling the Holder or Holders thereof to purchase a like aggregate number of Warrant Shares as the certificate or certificates surrendered then entitle each Holder to purchase. Any Holder desiring to exchange a Warrant certificate or certificates shall make such request in writing delivered to the Company at its principal office (or, if a Warrant Agent is appointed, the Warrant Agent at its principal office) and shall surrender, properly endorsed, the certificate or certificates to be so exchanged. Thereupon, the Company (or, if appointed, the Warrant Agent) shall execute and deliver to the person entitled thereto a new Warrant certificate or certificates, as the case may be, as so requested, in such name or names as such Holder shall designate. SECTION 5. Exercise of Warrants; Listing. 3 Subject to Section 6 hereof, upon the surrender of the Warrant and payment of the Warrant Price as aforesaid, the Company (or if appointed, the Warrant Agent) shall cause to be issued and delivered with all reasonable dispatch to or upon the written order of the Holder and in such name or names as the Holder may designate, a certificate or certificates for the number of full Warrant Shares so purchased upon the exercise of such Warrant, together with cash, as provided in Section 11 hereof, in respect of any fractional Warrant Shares otherwise issuable upon such surrender. Such certificate or certificates shall be deemed to have been issued and any person so designated to be named therein shall be deemed to have become a holder of record of such Warrant Shares as of the date of the surrender of such Warrants and payment of the Warrant Price, as aforesaid. The rights of purchase represented by the Warrant shall be exercisable, at the election of the Holder thereof, either in full or from time to time in part and, in the event that a certificate evidencing the Warrant is exercised in respect of less than all of the Warrant Shares purchasable on such exercise at any time prior to the date of expiration of the Warrant, a new certificate evidencing the unexercised portion of the Warrant will be issued, and the Warrant Agent (if so appointed) is hereby irrevocably authorized to countersign and to deliver the required new Warrant certificate or certificates pursuant to the provisions of this Section and Section 3 hereof, and the Company, whenever required by the Warrant Agent (if appointed), will supply the Warrant Agent with Warrant certificates duly executed on behalf of the Company for such purpose. 5.2 Listing of Shares on Securities Exchange; Exchange Act Registration. The
Company will promptly use its best efforts to cause the Warrant Shares to be listed, subject to
official notice of issuance, on all national securities exchanges on which the Common Stock is
listed and whose rules and regulations require such listing, as soon as possible following the date
hereof. SECTION 6. Payment of Taxes. The Company will pay all documentary stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of Warrants; provided, however, that the Company shall not be required to pay any tax or taxes which may be payable in respect of any transfer involved in the issue or delivery of any Warrant or certificates for Warrant Shares in a name other than that of the registered Holder of such Warrants. SECTION 7. Mutilated or Missing Warrants. In case any of the certificates evidencing the Warrants shall be mutilated, lost, stolen or destroyed, the Company may in its discretion issue and deliver (and, if appointed, the Warrant Agent shall countersign and deliver) in exchange and substitution for and upon cancellation of the mutilated Warrant certificate, or in lieu of and substitution for the Warrant certificate lost, stolen or destroyed, a new Warrant certificate of like tenor, but only upon receipt of evidence reasonably satisfactory to the Company and the Warrant Agent (if so appointed) of such loss, theft or destruction of such Warrant and an indemnity or bond, if requested, also reasonably satisfactory to them. An applicant for such a substitute Warrant certificate shall also comply with such other reasonable regulations and pay such other reasonable charges as the Company (or the Warrant Agent, if so appointed) may prescribe. 4 SECTION 8. Reservation of Warrant Shares; Purchase and Cancellation of Warrants. SECTION 9. Warrant Price. Subject to any adjustments required by Section 10 hereof, the price per share at which Warrant Shares shall be purchasable upon exercise of a Warrant (as to any particular Warrant, the “Warrant Price”) shall be Eight Dollars and Thirty-One Cents ($8.31) per share. SECTION 10. Adjustment of Warrant Price and Number of Warrant Shares. The number and kind of securities purchasable upon the exercise of each Warrant and the Warrant Price shall be subject to adjustment from time to time upon the happening of certain events, as hereinafter defined. 10.1 Adjustments. The number of Warrant Shares purchasable upon the exercise
of each Warrant and the Warrant Price shall be subject to adjustment as follows: 5 any such reclassification or change in connection with a consolidation or merger in which the Company is the surviving corporation), the number of Warrant Shares purchasable upon exercise of each Warrant immediately prior thereto shall be adjusted so that the Holder of each Warrant shall be entitled to receive the kind and number of Warrant Shares or other securities of the Company or other property which he would have owned or have been entitled to receive after the happening of any of the events described above, had such Warrant been exercised immediately prior to the happening of such event or any record date with respect thereto. An adjustment made pursuant to this paragraph (a) shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event. 10.1.2 In case the Company shall issue rights, options or warrants to all
holders of its outstanding
Common Stock, without any charge to such holders, entitling them to subscribe
for or purchase shares of Common Stock at a price per share which is lower at
the record date mentioned below than the then current market price per share of
Common Stock (as defined in paragraph (d) below), the number of Warrant Shares
thereafter purchasable upon the exercise of each Warrant shall be determined by
multiplying the number of Warrant Shares theretofore purchasable upon exercise
of each Warrant by a fraction, of which the numerator shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights,
options or warrants plus the number of additional shares of Common Stock offered
for subscription or purchase in connection with such rights, options or
warrants, and of which the denominator shall be the number of shares of Common
Stock outstanding on the date of issuance of such rights, options or warrants
plus the number of shares which the aggregate offering price of the total number
of shares of Common Stock so offered would purchase at the current market price
per share of Common Stock at such record date. Such adjustment shall be made
whenever such rights, options or warrants are issued, and shall become effective
immediately after the record date for the determination of stockholders entitled
to receive such rights, options or warrants. 6 10.1.4 For the purpose of any computation under paragraphs (b) and (c) of
this Section, the current
market price per share of Common Stock at any date shall be the average of the
daily last sale prices for the 20 consecutive trading days ending one trading
day prior to the date of such computation. The closing price for each day shall
be the last reported sales price regular way or, in case no such reported sale
takes place on such day, the average of the closing bid and asked prices regular
way for such day, in each case on the principal national securities exchange on
which the shares of Common Stock are listed or admitted to trading or, if not so
listed or admitted to trading, the last sale price of the Common Stock on the
Nasdaq Stock Market or any comparable system. If the current market price of the
Common Stock cannot be so determined, the Board of Directors of the Company
shall reasonably determine the current market price on the basis of such
quotations as are available. 7 10.1.9 Upon the expiration of any rights, options, warrants or conversion
or exchange privileges, if
any thereof shall not have been exercised, the Warrant Price and the number of
Warrant Shares purchasable upon the exercise of each Warrant shall, upon such
expiration, be readjusted and shall thereafter be such as it would have been had
it been originally adjusted (or had the original adjustment not been required,
as the case may be) as if (A) the only shares of Common Stock so issued were the
shares of Common Stock, if any, actually issued or sold upon the exercise of
such rights, options, warrants or conversion or exchange rights and (B) such
shares of Common Stock, if any, were issued or sold for the consideration
actually received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the issuance, sale
or grant of all such rights, options, warrants or conversion or exchange rights
whether or not exercised. 8 shall be reduced proportionately); provided, however, that no adjustment
in respect of dividends, interest or other income on or from such shares or other securities and
property shall be made during the term of a Warrant or upon the exercise of a Warrant. The
Company shall mail by first class mail, postage prepaid, to each Holder, notice of the execution
of any such agreement. Such agreement shall provide for adjustments, which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section 10. The
provisions of this subsection 10.5 shall similarly apply to successive consolidations, mergers,
sales, transfers or leases. The Warrant Agent (if appointed) shall be under no duty or
responsibility to determine the correctness of any provisions contained in any such agreement
relating to the kind or amount of shares of stock or other securities or property receivable upon
exercise of Warrants or with respect to the method employed and provided therein for any
adjustments and shall be entitled to rely upon the provisions contained in any such agreement. SECTION 12. No Rights as Shareholders; Notices to Holders. Nothing contained in this Agreement or in any of the Warrants shall be construed as conferring upon the Holders or their transferees the right to vote or to receive dividends or to consent or to receive notice as shareholders in respect of any meeting of shareholders for the election of directors of the Company or any other matter, or any rights whatsoever as shareholders of the Company. If, however, at any time prior to the expiration of the Warrants and prior to their exercise, any of the following events shall occur: 12.1.1 the Company shall declare any dividend payable in any securities upon its
shares of Common Stock or make any distribution (other than a regular cash dividend, as such
dividend may be increased from time to time, or a dividend payable in shares of Common Stock)
to the holders of its shares of Common Stock; or 9 12.1.3 a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation, merger, sale, transfer or lease of all or substantially all of its property, assets, and business as an entirety) shall be proposed, then in any one or more of said events the Company shall (a) give notice in writing of such event as provided in Section 14 hereof and (b) if the Warrants have been registered pursuant to the Act, cause notice of such event to be published once in The Wall Street Journal (national edition), such giving of notice and publication to be completed at least 10 days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholders entitled to such dividend, distribution, or subscription rights or for the determination of stockholders entitled to vote on such proposed dissolution, liquidation or winding up or the date of expiration of such offer. Such notice shall specify such record date or the date of closing the transfer books or the date of expiration, as the case may be. Failure to publish, mail or receive such notice or any defect therein or in the publication or mailing thereof shall not affect the validity of any action in connection with such dividend, distribution or subscription rights, or such proposed dissolution, liquidation or winding up, or such offer. SECTION 13. Appointment of Warrant Agent. At such time as the Company shall register Warrants under the Act, the Company shall appoint a Warrant Agent to act on behalf of the Company in connection with the issuance, division, transfer and exercise of Warrants. At such time as the Company appoints a Warrant Agent, the Company shall enter into a new Warrant Agreement with the Warrant Agent pursuant to which all new Warrants will be issued upon registration of transfer or division, which will reflect the appointment of the Warrant Agent, as well as additional customary provisions as shall be reasonably requested by the Warrant Agent in connection with the performance of its duties. In the event that a Warrant Agent is appointed, the Company shall (i) promptly notify the Holders of such appointment and the place designated for transfer, exchange and exercise of the Warrants, and (ii) take such steps as are necessary to insure that Warrants issued prior to such appointment may be exchanged for Warrants countersigned by the Warrant Agent. SECTION 14. Notices; Principal Office. Any notice pursuant to this Agreement by the Company or by any Holder to the Warrant Agent (if so appointed), or by the Warrant Agent (if so appointed) 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 Company, at its office, Attention: President 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 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000. Each party hereto 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. Any notice mailed pursuant to this Agreement 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. SECTION 15. Successors. Except as expressly provided herein to the contrary, all the covenants and provisions of this Agreement by or for the benefit of the Company and the Lender shall bind and inure to the benefit of their respective successors and permitted assigns hereunder. 10 SECTION 16. Merger or Consolidation of the Company. The Company will not merge or consolidate with or into, or sell, transfer or lease all or substantially all of its property to, any other corporation unless the successor or purchasing corporation, as the case may be (if not the Company), shall expressly assume, by supplemental agreement, the due and punctual performance and observance of each and every covenant and condition of this Agreement to be performed and observed by the Company.
SECTION 17. Investment Representations. Lender represents and warrants to BioTime
that: 11 17.1.6 Lender is an “accredited investor,” as such term is defined in Regulation D
promulgated under the Act. 12 18.1.3 The Company 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 the Company, listing fees and expenses, and fees and expenses of the Company’s counsel, independent accountants and other persons retained or employed by the Company. Selling Securities Holders shall pay any underwriters discounts applicable to the Warrant and Warrant Shares. SECTION 19. Legends. The Warrants and Warrant Shares issued pursuant to this Agreement shall bear an appropriate legend, conspicuously disclosing the restrictions on exercise and transfer under Section 2.2 of this Agreement until the same are registered for sale under the Act. The Company agrees that upon the sale of the Warrant and Warrant 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. The Company further agrees to remove the legend at such time as registration under the Act shall no longer be required. SECTION 20. Applicable Law. This Agreement and each Warrant issued hereunder shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflict of laws. SECTION 21. Benefits of this Agreement. Nothing in this Agreement shall be construed to give to any person or corporation other than the Company, the Warrant Agent (if appointed) and the Holders any legal or equitable right, remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Agent and the Holders of the Warrants. SECTION 22. Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. SECTION 23. Captions. The captions of the Sections and subsections of this Agreement have been inserted for convenience only and shall have no substantive effect. 13 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, all as of the day and year first above written.
BIOTIME, INC. Attest: Xxxxxx X. Xxxxxxxx 14 EXHIBIT ATHIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER APPLICABLE STATE SECURITIES LAWS. THIS WARRANT MAY NOT BE EXERCISED, SOLD, PLEDGED, HYPOTHECATED, TRANSFERRED OR ASSIGNED EXCEPT UNDER AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS, UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. VOID AFTER 5:00 P.M. NEW YORK TIME, March 26, 2006 |
Certificate No.____ Warrant to Purchase [Insert number of Shares] ------------------------- Shares of Common Stock
BIOTIME, INC. 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 9 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 Share 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 March 26, 2006 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 bank or trust company or a broker or dealer which is a member of the National Association of Securities Dealers, Inc., and simultaneous payment of the Warrant Price (or as otherwise set forth in Section 10.5) of the Warrant Agreement at the principal office of the Company (or if a Warrant Agent is appointed, at the principal office of the Warrant Agent). Payment of such price shall be made in cash or by certified or bank cashier’s check. 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. 15 This Warrant Certificate is issued under and in accordance with a Warrant Agreement dated as of March 27, 2001 between the Company and Xxxxxx X. Xxxxxxxx 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 may be obtained by the Holder hereof upon written request to the Company. In the event that pursuant to Section 13 of the Warrant Agreement a Warrant Agent is appointed and a new warrant agreement entered into between the Company and such Warrant Agent, then such new warrant agreement shall constitute the Warrant Agreement for purposes hereof and this Warrant Certificate shall be deemed to have been issued pursuant to such new warrant agreement. Upon any partial exercise of the Warrant 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 Warrant evidenced by this Warrant Certificate shall not have been exercised. This Warrant Certificate may be exchanged at the office of the Company (or the Warrant Agent, if appointed) 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. This Warrant Certificate is transferable at the office of the Company (or the Warrant Agent, if appointed) in the manner and subject to the limitations set forth in the Warrant Agreement. The Holder hereof may be treated by the Company, the Warrant Agent (if appointed) 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, if appointed) may treat the Holder hereof as the owner for all purposes. Neither the Warrant nor this Warrant Certificate entitles 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.]* 16 |
DATED: BIOTIME, INC. (Seal) By:________________________ Title:_____________________ Attest:____________________ [COUNTERSIGNED: , WARRANT AGENT By:_________________________]* Authorized Signature -------------------- * To be part of the Warrant only after the appointment of a Warrant Agent pursuant to Section 13 of the Warrant Agreement.
17 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 purchase price in full in the form of cash
or a certified or bank cashier’s check in the amount of $ . |
PLEASE INSERT SOCIAL SECURITY NAME OR OTHER IDENTIFYING NUMBER (Please Print Name & Address) OF ASSIGNEE Address ___________________________ 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. 18 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. |
Dated:___________________ ________________________________ NOTE: The above signature should correspond exactly with the name on the face of this Warrant Certificate.
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